Mizaji And Another vs The State Of U.P

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

Court: Supreme Court of India

Case Number: Criminal Appeals Nos. 81 and 82 of 1958

Decision Date: 18 December 1958

Coram: J.L. Kapur, Syed Jaffer Imam, S.K. Das

In this matter the Supreme Court recorded that the appeal was filed by Mizaji and another individual against the State of Uttar Pradesh, with the judgment rendered on 18 December 1958. The case was heard by a bench comprising Justice J L Kapur, joined by Justices Syed Jaffer Imam and S K Das. The citation of the decision appears as 1959 AIR 572 and 1959 SCR Supplement (1) 940, and it has been referenced in subsequent reports as D 1974 SC 1039 (7,16). The offence under consideration involved the provisions of the Indian Penal Code, 1860, specifically sections 149 and 302, which deal with unlawful assemblies and murder. According to the head‑note, early one morning five accused—Tej Singh, who bore a spear; his son Mizaji, who concealed a pistol within the folds of his dhoti; his nephew Subedar; his cousin Machal; and his servant Maiku, each armed with lathis—went to forcibly take possession of a field cultivated by Rameshwar and other persons. While Tej Singh acted as a lookout, Maiku began ploughing and overturning the jowar sown in one part of the field, and the remaining accused started cutting the standing sugarcane in another part. When Rameshwar and his companions arrived, they protested to Tej Singh; in response the accused assembled around Tej Singh and warned the complainants to leave, threatening that they would be finished otherwise. Upon refusal, Tej Singh ordered Mizaji to discharge his pistol, and Mizaji shot Rameshwar, resulting in his death. The trial courts determined that the common object of the assembled group was to take forcible possession of the field and that they were prepared to use lethal force if met with resistance. Accordingly, the courts convicted the appellants under section 302 read with section 149 of the Penal Code, sentencing Mizaji to death and each of the others to life imprisonment. The appellants challenged these convictions, arguing that the remaining participants could not have known that Mizaji carried a pistol, that the murder was not committed in furtherance of the common object, and that they did not anticipate that a killing would likely occur as part of the unlawful assembly’s goal.

The Supreme Court held that the convictions and sentences were proper under sections 302 and 149. It observed that the extent of the members’ willingness to pursue the common object is evident from the weapons they bore and their conduct at the scene. The Court reasoned that the circumstances clearly indicated that the accused must have been aware of Mizaji’s possession of a pistol, and that they were ready to secure the field by any means, including lethal force. The murder was found to be immediately connected with the common object of taking forcible possession. Under the first limb of section 149, an offence committed in prosecution of the common object must be intended to achieve that object and must be closely linked to it. The Court further explained that even if an offence is not the direct means of achieving the common object, it falls within section 149 if it is an act that the assembly members knew was likely to occur. The term “know” was clarified to exclude mere possibilities and to require actual awareness that the act was probable, citing precedents such as Queen v Sabid Ali (1873) 20 W.R. 5 Cr. and Chikkarange Gowde v State of Mysore, AIR (1956) S.C. 731. The fact that the accused proceeded to take possession while the complainants were absent did not negate the presence of a common object to forcibly acquire the field, especially since proceedings over the field’s possession were pending in the Revenue Court and the accused arrived armed with lethal weapons, anticipating resistance. Consequently, the Court affirmed that Mizaji’s death sentence was justified, as he shared the common object of the unlawful assembly and intentionally brought the pistol from his home to be used in the execution of that objective.

In this case, the Court explained that an offence committed by members of an unlawful assembly falls within section 149 of the Indian Penal Code even when the act is not directly carried out in furtherance of the assembly’s common object, provided it can be shown that the members knew the offence was likely to occur. The Court clarified that the term “know” does not merely refer to a remote possibility that an act might happen; it requires a knowledge that the act was a probable consequence of the assembly’s purpose. The Court cited the authorities Queen v. Sabid Ali, (1873) 20 W.R. 5 Cr., and Chikkarange Gowde v. State of Mysore, A.I.R. (1956) S.C. 731, to illustrate this principle. The Court observed that the fact the appellants proceeded to take possession of the disputed field in the absence of the complainants did not demonstrate that the common object was anything other than forcible possession. The proceedings before the Revenue Court concerning the ownership of the field were ongoing, and the appellants entered the scene armed with lethal weapons, indicating that they anticipated meeting resistance. Their preparation with weapons showed that they were aware of the likely opposition. The Court held that Mizaji was correctly sentenced to death because he shared the common object of the unlawful assembly, carried a pistol from his residence for the purpose of furthering that object, and actually used the pistol during the incident. The Court further ruled that the fact the pistol was used at the behest of his father did not constitute a mitigating circumstance.

The judgment was delivered under the headings “CRIMINAL APPELLATE JURISDICTION: Criminal Appeals Nos. 81 and 82 of 1958.” The appeals were taken by special leave from a judgment and order dated 28 February 1958 of the Allahabad High Court in Criminal Appeal No. 1809 of 1957 and from a referral dated 28 November 1957 of the Court of Sessions at Farrukhabad in Sessions Trial No. 61 of 1957. Counsel for the appellants argued before the Court, while counsel for the respondent represented the State. The judgment was pronounced on 18 December 1958 by the Judge named Kapur. The Court noted that the two appeals originated from the same judgment of the Allahabad High Court and raised a common question of law. The appellants comprised Tej Singh and his son Mizaji, who were father and son; Subedar, a nephew of Tej Singh; Machal, a cousin of Tej Singh; and Maiku, who served as a servant of Tej Singh. All of them were convicted under section 302 read with section 149 of the Indian Penal Code. Except for Mizaji, who received the death penalty, the others were sentenced to life imprisonment. In addition, they were convicted of rioting. Because Tej Singh and Mizaji were armed with a spear and a pistol respectively, they were each convicted under section 148 and sentenced to three years’ rigorous imprisonment. The remaining appellants, who were armed with lathis, were convicted under section 147 and sentenced to two years’ rigorous imprisonment. All sentences were ordered to run concurrently, but Mizaji’s term of imprisonment was to end only upon his execution. The appellants challenged these convictions and sentences by filing appeals to the High Court, and both appeals were subsequently heard.

The Court observed that the High Court had upheld the convictions and sentences of the appellants. The offence for which they were convicted occurred on 27 July 1957 at sunrise. The land in question was field number 1096, also called Sukhna field, which the revenue records listed as belonging to Banwari, who was recorded as the tenant‑in‑chief. In 1949 Banwari had mortgaged the plot to a person named Lakhan Singh, and in 1952 the revenue record showed that the field was being cultivated by the deceased Rameshwar together with four other persons: Ram Sarup, who was Rameshwar’s uncle; Jailal, his brother; Sita Ram; and Saddon. The record did not specify the title under which these cultivators held possession. The mortgage was redeemed in 1953. The defence contended that in the years 1954, 1955 and 1956 the revenue entries indicated that Banwari possessed the field, but any such entries were corrected in 1956 to show that Rameshwar and the four named persons were in possession, and those entries remained in force in 1957. On 18 April 1957 Banwari sold field number 1096 to the appellant Tej Singh, who applied for a mutation of the title in his favour. This application was opposed by the deceased and the four other persons whose names appeared as possessors in the records. In the early hours of 27 July 1957 the five appellants arrived armed. Mizaji carried a pistol concealed in the fold of his dhoti, Tej Singh bore a spear, and the others were armed with lathis. A plough, a wooden plank called a patela, and bullocks were also brought. The disputed field consisted of three portions: one planted with sugarcane, another with jowar, and a third uncultivated. Maiku began ploughing the jowar portion, overturning the sowed jowar, while Tej Singh kept watch with his spear. Witness Bateshwar, identified as P. W. 7, observed the incident and reported it to Ram Sarup, who, together with Rameshwar, Jailal and Israel, went to Sukhna field unarmed. Ram Sarup asked Tej Singh why he was destroying his field; Tej Singh replied that he had purchased the field and would do as he pleased, which provoked an altercation. Consequently, the four persons cutting the sugarcane—Mizaji, Subedar, Machal and Maiku—approached Tej Singh, and at his instigation Mizaji drew his pistol and fired, striking Rameshwar, who collapsed and died an hour later. After the shooting the accused fled the scene. Ram Sarup, Jailal and Israel proceeded to the Nawabganj police station, where Ram Sarup lodged a first‑information‑report at about 7:30 a.m., naming all five accused. The police conducted searches for the accused but could not locate them, and proceedings were instituted under sections 87 and 88 of the Code of Criminal Procedure.

After proceedings were initiated under Section 88 of the Code of Criminal Procedure, the accused Subedar, Tej Singh, Machal and Maiku appeared before the court on 3 August 1957, and Mizaji presented himself on 14 August 1957; all were subsequently taken into custody. The prosecution based its case on the testimony of eyewitnesses and on the statements of Bateshwar, who had conveyed information to the complainant’s party regarding the impending arrival of Tej Singh and the others. The defence uniformly denied any participation in the incident and advanced the alternative theory that Rameshwar had been killed during a dacoity that took place at the residence of Ram Sarup. The learned Sessions Judge accepted the prosecution’s version, held that Ram Sarup was in possession of the disputed field, and concluded that the accused had formed an unlawful assembly whose common object was to take forcible possession of the field and to meet every eventuality, even to cause death if interference occurred. Accordingly, the Judge found that Mizaji’s discharge of a pistol was in prosecution of that common object and held all the accused guilty of rioting under Section 147 of the Indian Penal Code and of murder under Section 302 read with Section 149. On appeal, the High Court affirmed that the appellants were members of an unlawful assembly and had proceeded to the Sukhna field with the purpose of forcibly acquiring possession of the land. The Court observed that there was no doubt the accused went fully prepared to meet any eventuality, including the commission of murder, if such an act was necessary to achieve their common objective of obtaining the field. It further noted that, given the variety of weapons with which the accused were armed, they must have foreseen a likelihood of murder occurring in prosecution of that common object. The High Court also held that all the appellants had moved together, each bearing different arms, and that, considering their relationship, it was improbable they were unaware that Mizaji carried a pistol. Even if the common object was not expressly to murder Rameshwar or any other member of the complainant’s party, the Court found that the nature of the weapons—pistols and lathis—made it clear the accused knew murder was a probable consequence of their attempt to take forcible possession of the disputed land. Moreover, the Court concluded that the accused were prepared, if necessary, to commit murder in furtherance of their common objective of securing the field. In reaching these conclusions, the Court accepted the testimony of Matadin and Hansram, who testified that the accused had ordered Ram Sarup and his companions to leave, warning that otherwise they would finish all of them.

When the complainants resisted, Mizaji discharged his pistol at them, and because the parties had arrived at the disputed field armed with such weapons, the High Court concluded that they must have known that murder was likely to occur in the prosecution of their objective. The High Court further found that the appellants intended to forcibly dispossess the complainants; consequently, they proceeded to the disputed field to take possession, and upon learning of their presence, the complainants’ party came to the field and offered resistance. In response, Mizaji fired the pistol, which caused the death of Rameshwar. The Court also expressed the view that the accused’s action was pre‑meditated and well‑designed, and that, considering the circumstances and the weapons with which they were armed, the accused must have foreseen that murder was likely to be committed in furtherance of their common object. The appellants argued that the High Court was not justified in inferring that the other members of the assembly knew about Mizaji’s pistol. While it was undisputed that the father, Tej Singh, must have known that his son, Mizaji, possessed a pistol, the appellants contended that the High Court could not be said to have erroneously inferred that the remaining members were aware of Mizaji’s possession of the pistol. The issue for determination was the precise common object of the unlawful assembly and whether the murder was committed in the prosecution of that common object, or whether the members of the assembly knew that such a murder was likely to be committed in pursuit of the common object. The appellants maintained that the common object was merely to take forcible possession, and that the murder was neither committed in the prosecution of that object nor was it an offence that the assembly members knew was likely to arise. Although the common object of taking forcible possession of the Sukhana field could not be doubted, the question remained whether, in the circumstances, the members of the assembly were prepared to go to the extent of committing murder or knew that such a result was likely. Evidence showed that one member, Tej Singh, was armed with a spear; his son Mizaji carried a pistol; and the others bore lathis. The extent of the assembly’s preparedness was demonstrated by the weapons they bore, their conduct in gathering where Tej Singh was, and the language they used toward the complainants’ party. The High Court found this evidence indicative of the assembly’s readiness to commit murder if necessary in furtherance of their common object of taking forcible possession of the land.

The High Court held that the appellants had gone to the scene prepared to commit murder if it became necessary in order to achieve their common objective of taking forcible possession of the land. This conclusion was drawn from the testimony of two witnesses, Matadin and Hansraj, who stated that when the party of the complainant arrived and objected to the actions of the appellants, the appellants immediately assembled and told Ram Sarup and his companions to leave, warning that they would be killed otherwise. When the complainant’s party refused to depart, a pistol was discharged. The Court explained that this finding demonstrated how far the appellants were willing to go to pursue their shared aim of acquiring the Sukhana field by force. In addition, the High Court observed that the matter clearly fell within the second limb of Section 149 of the Indian Penal Code because the members of the unlawful assembly were armed with weapons and their conduct showed a readiness to employ those weapons in order to accomplish their common goal. Counsel for the appellants relied upon the decision in Queen v. Sabid Ali and contended that Section 149 should not apply. In that 1873 case, the full bench of judges had expressed differing views on the proper interpretation of Section 149. The facts involved an unlawful assembly that attempted to take possession of a piece of land. The majority of the judges reasoned that when an unexpected resistance was offered by a member of the complainant’s party and the assembly was apparently overpowered, one member of the assembly, whose exact moment of joining was not established, fired a gun and killed an occupant who was resisting the forced dispossession. The majority further held that the killing was not committed with the intention of achieving the common object of driving the complainants out, but was a reaction to an unforeseen counter‑attack. Judge Ainslie, however, opined that the assembly’s common object included not only the forceful ejection of the occupants but also the demonstration of force, and that this objective encompassed the possibility of committing murder as part of the means to that end. Judge Phear stated that the offence must be directly connected to the common object by virtue of the nature of that object, and that the members of the unlawful assembly must be prepared to achieve the objective at any cost, including by murder if necessary. He articulated the test as whether the members intended to attain the common object by means of murder when required. In contrast, when the events were of sudden origin, as the majority had found in the Sabid Ali case, the Court held that liability rested on the individual who performed the act. Regarding the second limb of Section 149, Judge Phear expressed that the test involved determining whether the members of the assembly were aware that it was likely that one among them would commit an act likely to cause death.

The Court expressed the view that, for the provision to be invoked, it was necessary that the members of the unlawful assembly must have been aware that it was likely that one of the members would carry out an act likely to cause death. Chief Justice Couch held that the act of firing was not carried out in prosecution of the common object of the assembly and observed that there was little distinction between the first and the second parts of section 149. He explained, “At first there does not seem to be much difference between the two parts of the section and I think the cases which would be within the first, offences committed in prosecution of the common object, would be, generally, if not always, within the second, namely, offences which the parties knew to be likely to be committed in the prosecution of the common object. But I think there may be cases which would come within the second part and not within the first.” Justice Jackson, considering the facts of the case, held that the assembly neither intended to commit nor knew that murder was likely to be committed. Justice Pontifex interpreted the section to mean that the offence must either flow directly from the common object or must be so likely to flow from the prosecution of the common object that each member could reasonably expect it to occur. In the second part, the term “know” was understood to mean that some members of the assembly possessed prior knowledge that murder was likely to be committed. The Court noted that this provision has been the subject of interpretation by various High Courts in India, but emphasized that each case must be decided on its particular facts. It clarified that the first part of the section requires that the offence committed in prosecution of the common object be carried out with the intention of achieving that common object. A pre‑concerted meeting of the members is not essential; it is sufficient that the common object be adopted and shared by all members. For a case to fall under the first part, the offence must be immediately connected with the common object of the unlawful assembly to which the accused belonged. Even when the offence is not directly in prosecution of the common object, it may still attract section 149 if it can be shown that the members knew the offence was likely to be committed. The expression “know” does not denote a mere possibility that might or might not happen. For example, it is common knowledge that when a body of heavily armed men sets out in a village to forcibly take a woman, someone is likely to be killed, and all members of the unlawful assembly must be aware of that likelihood.

In this case, the Court explained that a group of persons who went armed to obtain forcible possession of land could be said to have known that murder was likely to occur when the weapons they carried and their overall conduct clearly indicated such knowledge to each member. The Court referred to the view expressed by Couch, C. J., in Sabid Ali’s case (1), noting that when an offence is committed in prosecution of the common object, it is generally an offence that the members of the unlawful assembly understood was likely to be committed in furtherance of that object. However, the Court emphasized that this observation did not make the opposite statement true; there could be situations that fall within the second part of section 149 but not within the first. Accordingly, the Court stressed that the distinction between the two parts of section 149 of the Indian Penal Code could not be ignored or eliminated. In every case, the Court said, it must be determined whether the offence committed falls within the first part of section 149 as previously explained, or whether it is an offence that the members of the assembly knew was likely to be committed in prosecution of the common object, thereby falling within the second part.

The Court also considered the reliance placed by counsel for the appellants on the decision in Chikkarange Gowde v. State of Mysore (2). In that precedent, special circumstances were found to be decisive. The charge in that case was described as a composite one that mixed common intention and common object under sections 34 and 149 of the Indian Penal Code, but this Court held that the appropriate charge was in fact solely under section 149. The charge did not specify that three of the members possessed a separate common intention to kill the deceased, distinct from the intention of the remaining members of the unlawful assembly. The High Court had held that the common object was merely to chastise the deceased and had not found that the members knew the deceased was likely to be killed in pursuit of that object; consequently, the accused who was alleged to have inflicted the fatal injury was acquitted. This Court, relying on the findings of the High Court and the citations (1) (1873) 20 W.R. 5 Cr. and (2) A.I.R. 1956 S.C. 731, concluded that there was no liability under section 34 and that the charge had failed to give proper notice or a reasonable opportunity to the accused to meet that charge. Accordingly, the Court held that a conviction under section 302 read with section 149 was not legally justified, nor was a conviction under section 34. The appellants further argued that they had gone to take possession of the land in the absence of the complainants who were in possession, and therefore their common object was not to take forcible possession but to quietly take possession of the land.

In this case the appellants claimed that the land in dispute belonged to them by right. At the time the dispute was being considered, proceedings were pending before the Revenue Department, and the complainants were contesting the appellants’ claim. The appellants then went to the field armed with lethal weapons in order to take possession of land that was occupied by the complainants. By going armed they must have known that the complainants would resist, and the degree to which they were prepared to pursue their common purpose had to be judged from their collective conduct. The High Court had held, as noted earlier, that the appellants acted with the common object of acquiring forcible possession of the land. To achieve that object they split themselves into three groups. The first group, headed by Maida, was in the field where jowar was being sowed and Maida was engaged in ploughing. The second group, consisting of Mizaji, Subedar and Machal, was in the sugarcane field cutting the crop. The third individual, Tej Singh, was stationed as a lookout. When the complainants, having learned of the appellants’ activities, arrived at the scene they protested to Tej Singh. In response, all the members of Tej Singh’s party assembled at his position and warned the complainants to leave, threatening that they would be finished if they did not comply. The complainants refused to withdraw. At that point Tej Singh instructed Mizaji to fire at the complainants. Mizaji produced a pistol that he had concealed in the fold of his dhoti and discharged it. The bullet struck Rameshwar, who was injured, fell to the ground and died about an hour later. The appellants contended that, because the assembly had divided into three separate parties and only Mizaji actually used a firearm while the others did not employ any weapons and subsequently withdrew, the death could not be said to have been committed in furtherance of the common object of the assembly. Both the trial court and the High Court, however, found that the pistol had indeed been fired by Mizaji, making him responsible for the killing of Rameshwar, an act that amounted to murder, and they also concluded that Tej Singh was liable for abetment of that offence. The remaining issue for consideration was whether section 149 of the Indian Penal Code applied to the appellants collectively. That determination required an examination of the weapons carried by the parties and their overall conduct. According to the evidence, two of the appellants were armed, one with a spear and another with a pistol, while the rest were equipped with lathis. When the complainants’ group objected to the appellants’ actions, the entire assembly gathered and issued threats, telling the complainants to depart lest they be “finished.” The High Court accepted this evidence. From the totality of the conduct it appears that the members of the unlawful assembly were prepared to obtain forcible possession of the land by any means, and that the murder was directly linked to the common object, thereby bringing the case within the ambit of section 149.

The Court applied section 149 of the Indian Penal Code and held that all the accused were guilty of murder. It observed that the testimony of Hansram and Matadin, which described the moments just before the pistol was discharged, demonstrated that the members of the assembly were aware that a murder was likely to occur in order to achieve their common aim of taking forcible possession of the disputed land. The defence argued that Mizaji was reluctant to fire the pistol and only did so after his father urged him, and therefore contended that the death penalty should not be imposed on him. The Court rejected that argument, noting that Mizaji had brought the pistol from his home and had participated in the group that intended to seize possession of the land, which was then under the other party’s control and the subject of proceedings before the Revenue Officer. By sharing the common object of the unlawful assembly, Mizaji was deemed to have carried the pistol for the purpose of employing it in furtherance of that common objective, and he indeed discharged the weapon. The Court further held that the fact that Mizaji acted at the urging of his father did not constitute a mitigating circumstance worthy of consideration. In the Court’s view, the trial courts were correct in imposing the death sentence on Mizaji. The other accused were likewise found guilty under section 149 of the Indian Penal Code and were appropriately sentenced to life imprisonment. Consequently, the appeals were dismissed.