# MIZAJI AND ANOTHER v. THE STATE OF U.P

- **Citation:** [1959] Supp. 1 S.C.R. 940
- **Court:** Supreme Court of India
- **Decided:** 1958-02-28
- **Case number:** Criminal Appeals Nos. 81 and 82 of 1958
- **Bench:** Jafer Imam, S. K. DAs, J. L. Kapur
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/mizaji-and-another-v-the-state-of-u-p-1681
- **Pages:** 13

## Headnote

Murder-Unlawful Assembly-Common object to take forcible
possession-Killing by one-Liability of others-Sentence-Indian
Penal Code, z86o, (XLV of z86o) ss. z49 and 302.
Early one morning the five appellants, Tej Singh armed
with a spear, his son Mizaji armed with a pistol which he carried
in the folds of his dhoti, his nephew Subedar, his cousin Macha)
and his servant Maiku armed witli Jathis went to take forcible
possession of a field which was in the cultivatory possession of
Rameshwar and others. While Tej Singh stood guard, Maiku
started ploughing and overturning the jowar that had been sown
in one portion of the field and the others started cutting the
sugarcane which stood in another portion. When Rameshwar
and others arrived they protested to Tej Singh, whereupon all
the accused gathered near Tej Singh and asked the complainants
to go away otherwise they would be finished. On their refusal
to go, Tej Singh asked Mizaji to fire at them and Mizaji shot
Rameshwar dead. The Courts below found that the common
object of the unlawful assembly was to take forcible possession
of the field and to meet every eventuality even to the extent of
causing death if interfered with. It accordingly convicted the
appellants under s. 302 read with s. 149, Indian Penal Code, and
sentenced Mizaji to death and the others to imprisonment for
life. The appellants contended that the other appellants could
not have the knowledge that Mizaji carried a pistol in the folds
,,
,
\
(1) S.C.R.
SUPREME COURT REPORTS
941
of his dhoti, that the murder was not committed in prosecution
of the common object to take forcible possession nor did the
other appellants know that murder was likely to be committed
in furtherance of the common object.
Mizaji
and Another
Held, that the appellants had been rightly convicted and
sentenced under s. 302 read wita s. 149, Indian Penal Code. The The
extent to which the members of the unlawful assembly were
prepared to go in prosecution of the common object, is indicated
by the weapons carried by them and their conduct. The
circumstances show that the appellants must have known that
Mizaji was carrying a pistol. The appellants were prepared to
take forcible possession at any cost and the murder was immediately connected with the common object. Under the first part
of s. 149 the offence committed in prosecution of the common
object must be. one which was committed with a view to accomplish the common object and must be connected immediately
with the common object of the unlawful assembly of which the
accused were members. Even if the offence committed was not
in direct prosecution of the common object of the assembly, it
would yet fall under s. 149 if it could be shown that the offence
was such as the members knew was likely to be committed. The
expression 'know' does not mean a mere possibility, such as
might or might not happen.
Queen v. Sabid Ali, (1873) 20 W.R. S Cr., Chikkarange Gowde
v. State of Mysore, A.LR. (1956) S.C. 731, referred to.
The fact that the appellants went to take possession in the
absence of the complainants did not .show that the common
object was not to take forcible possession as proceedings were
going on between the parties in the Revenue Court for possession over the field and the appellants had gone armed with,
lethal weapons prepared to overcome the opposition which they
knew they would meet.
Mizaji was rightly given the sentence of death.
He shared
the common object of the unlawful assembly and carried the
pistol from his house to use it in prosecution of the object and
did use it. The fact that he used the pistol at the instance of
his father was not a mitigating circumstance.
CRIMINAL
APPELLATE
JURISDICTION:
Criminal
Appeals Nos. 81 and 82 of 1958.
Appeals by special leave from the judgment and
order dated February 28, 1958, of the Allahabad High
Court in Criminal Appeal No. 1809 of 1957 and Referred No. 138 of 1957 arising out of the judgment and
order dated ,November 28, 1957, of the Court of S

## Text

940
SUPREME COURT REPORTS [1959] Supp.
z95B
large area of land thus constituted and on account of
getting a compact block for themselves, is inadequate.
Altar Singh
h
and Othm
Therefore, assuming t at Art. 31 (2) applies as it was
v.
before the Fourth Amendment, it cannot be said that
n, Stale of u. P. the compensation which the tenure.holders will get
under s. 29-B is inadequate in the circumstances. This
Wa•<hoo J.
ground of attack also therefore fails.
Dtcemb1r 18.
There is no force in this petition and it is hereby
dismissed with costs.
Petition dismissed.
MIZAJI AND ANOTHER
v.
THE STATE OF U.P.
(JAFER IMAM, S. K. DAs and J. L. KAPUR, JJ.)
Murder-Unlawful Assembly-Common object to take forcible
possession-Killing by one-Liability of others-Sentence-Indian
Penal Code, z86o, (XLV of z86o) ss. z49 and 302.
Early one morning the five appellants, Tej Singh armed
with a spear, his son Mizaji armed with a pistol which he carried
in the folds of his dhoti, his nephew Subedar, his cousin Macha)
and his servant Maiku armed witli Jathis went to take forcible
possession of a field which was in the cultivatory possession of
Rameshwar and others. While Tej Singh stood guard, Maiku
started ploughing and overturning the jowar that had been sown
in one portion of the field and the others started cutting the
sugarcane which stood in another portion. When Rameshwar
and others arrived they protested to Tej Singh, whereupon all
the accused gathered near Tej Singh and asked the complainants
to go away otherwise they would be finished. On their refusal
to go, Tej Singh asked Mizaji to fire at them and Mizaji shot
Rameshwar dead. The Courts below found that the common
object of the unlawful assembly was to take forcible possession
of the field and to meet every eventuality even to the extent of
causing death if interfered with. It accordingly convicted the
appellants under s. 302 read with s. 149, Indian Penal Code, and
sentenced Mizaji to death and the others to imprisonment for
life. The appellants contended that the other appellants could
not have the knowledge that Mizaji carried a pistol in the folds
,,
,
\
(1) S.C.R.
SUPREME COURT REPORTS
941
of his dhoti, that the murder was not committed in prosecution
of the common object to take forcible possession nor did the
other appellants know that murder was likely to be committed
in furtherance of the common object.
Mizaji
and Another
Held, that the appellants had been rightly convicted and
sentenced under s. 302 read wita s. 149, Indian Penal Code. The The
extent to which the members of the unlawful assembly were
prepared to go in prosecution of the common object, is indicated
by the weapons carried by them and their conduct. The
circumstances show that the appellants must have known that
Mizaji was carrying a pistol. The appellants were prepared to
take forcible possession at any cost and the murder was immediately connected with the common object. Under the first part
of s. 149 the offence committed in prosecution of the common
object must be. one which was committed with a view to accomplish the common object and must be connected immediately
with the common object of the unlawful assembly of which the
accused were members. Even if the offence committed was not
in direct prosecution of the common object of the assembly, it
would yet fall under s. 149 if it could be shown that the offence
was such as the members knew was likely to be committed. The
expression 'know' does not mean a mere possibility, such as
might or might not happen.
Queen v. Sabid Ali, (1873) 20 W.R. S Cr., Chikkarange Gowde
v. State of Mysore, A.LR. (1956) S.C. 731, referred to.
The fact that the appellants went to take possession in the
absence of the complainants did not .show that the common
object was not to take forcible possession as proceedings were
going on between the parties in the Revenue Court for possession over the field and the appellants had gone armed with,
lethal weapons prepared to overcome the opposition which they
knew they would meet.
Mizaji was rightly given the sentence of death.
He shared
the common object of the unlawful assembly and carried the
pistol from his house to use it in prosecution of the object and
did use it. The fact that he used the pistol at the instance of
his father was not a mitigating circumstance.
CRIMINAL
APPELLATE
JURISDICTION:
Criminal
Appeals Nos. 81 and 82 of 1958.
Appeals by special leave from the judgment and
order dated February 28, 1958, of the Allahabad High
Court in Criminal Appeal No. 1809 of 1957 and Referred No. 138 of 1957 arising out of the judgment and
order dated ,November 28, 1957, of the Court of Sessions at Farrukha.bad in Sessions Trial No. 61 of 1957.
Jai Gopal Sethi and B. C. Misra, for the appellants.
G. C. Mathur, and O. P. Lal for the respondent.
v.
Stale of U. P.
942
SUPREME COURT REPORTS [1959] Supp.
19!¢
1958. December 18. The Judgment of the Court
was delivered by
Mizaji
and Anothe.
KAPUR, J.-These are two appeals which arise out
v.
of the same judgment and order of the High Court at
The State of u. P. Allahabad and involve a. common question of law.
Appellants Tej Singh and Mizaji are father and son,
I«pu• J.
Subedar is a nephew of Tej Singh, Macha! is Tej
Singh's cousin and fyiaiku was a servant of Tej Singh.
They were all convicted under s. 302 read with s. 149
of the Indian Penal Code and except Mizaji who was
sentenced to death, they were all sentenced to imprisonment for life.
They were also convicted of the
offence of rioting and because Tej Singh and Mizaji
were armed with -a spear and a pistol respectively,
they were convicted under s. 148 of the Indian Penal
Code and sentenced to three years' rigorous imprisonment and the rest who were armed with lathis were
convicted under s. 147 of the Indian Penal Code and
sentenced to two years' rigorous imprisonment. All
the sentences were to run concurrently but Mizaji's
term of imprisonment was to come to an end after
" he is hanged ". Against this order of conviction
the appellants took an appeal to the High Court and
both their convictions and sentences were confirmed.
The offence for which the appellants were convicted
was committed on July 27, 1957, at about sunrise and
the facts leading to the occurrence were that field
no. 1096 known as Sukhna field was recorded in the
revenue papers in the name of Banwari who was
recorded as in possession as tenant-in-chief. Sometime in 1949 he mortgaged this plot of land to one
Lakhan Singh. In 1952 this field was shown as being
under the cultivation of Rameshwar, the deceased and
four others persons, Ram Sarup who was the uncle of
Rameshwar, Jailal his brother, Sita Ram and Saddon.
The record does not show as to the title under which
these persons \\·ere holding possession. The mortgage
was redeemed sometime in 1953. The defence plea
was that in the years 1954, 1955, 1956 possession was
shown as that of Banwari. But if there were any
such entries, they were corrected in 1956 and possession was shown in the revenue papers as that of
f
(
(1) S.C.R.
SUPREME COURT REPORTS
943
Rameshwar, and four others abovenamed. These enz95a
tries showing cultivating possession of the deceased and
Mizaji
four others were continued in 1957. On April 18, 1957,
and Another
Banwari sold the field No. 1096 to Tej Singh ap~ellant
v.
who made an application for mutation in his favour The State 01 u. P.
bu~ this was opposed by the deceased and four other
Kapur ].
persons whose names were shown as being in possession. In the early hours of July 27, 1957, the five
appellants came armed as above stated. Miza.ji's pistol
is stated to have been in the fold (phent) of his dhoti.
A plough and plank known as patela and bullocks
were also brought. The disputed field had three portions, in one sugarcane crop was growing, in the other
J owar had been sown and the rest had not been cultivated. Maiku started ploughing the Jowar field and
overturned the Jowar sown therein while Tej Singh
with his spear kept watch. Bateshwar P. W. 7 seeing
what was happening gave information of this to Ram
Sarup who accompanied by Rameshwar, Jailal and
Israel came to the Sukhna field but unarmed. Ram
Sarup inquired of Tej Singh as to why he was damaging his field and Tej Singh replied that he had purchased the field and therefore would do "what he was
doing" which led to an altercation. Thereupon, the
four persons cutting the sugarcane crop i. e. Mizaji,
Subedar, Macha! and Maiku came to the place where
Tej Singh was and upon the instigation of Tej Singh,
Mizaji took out the pistol and fired which hit Rameshwar, who fell down and died i
hour later. The
accused, after Rameshwar fell down, fled from the
place. Ram Sarup, Jailal and Israel then went to the
police station Nawabgunj and Ram Sarup there made
the first information report at about 7 -30 a. m., in
which all the five accused were named. When the
police searched for the accused they could not be found
and proceedings were taken under ss. 87 and 88 of the
Code of Criminal Procedure, but before any process
was is1med Subedar, Tej Singh and Macha.I and Maiku
appeared in court on August 3, 1957, and Mizaji on
August 14, 1957, and they were taken into custody.
The prosecution relied upon the evidence of the eyewitnesses and also of Bateshwar who carried the
,,
944
SUPREME COURT REPORTS [1959] Supp.
information to the party of complainant as to the _coming
of Tej Singh and others. The defence of the accused
Mizaji
••d Anoth"
was a total denial of having participated in the occurx958
v.
ence and as a matter of fa.ct suggested that Ramesh war
The State of u. P. was k'illed in a da.coity which took place at the house
Kapur].
of Ram Sarup. The learned Sessions Judge accepted
the story of the prosecution and found Ram Sarup to
be in possession of the field ; he also found that the
appellants formed a.n unlawful assembly "the common
object of which was to take forcible possession of the
field and to meet every eventuality even to the extent
of causing death if they are interfered with in their
taking possession of the field " and it was in prosecution of the common object of that assembly thatMiza.ji
had fired the pistol and therefore all were guilty of the
offence of rioting and of the offence under s. 302 read
with s. 149, Indian Penal Code. The High Court on
appeal held that the appellants were members of a.n
unlawful assembly and had gone to the Sukhna field
with the object of taking forcible possession and
"there is also no doubt that the accused had gone
there fully prepared to meet any eventuality even to
commit murder if it was necessary for the accomplishment of their common object of obtaining possession
over the field. There is also no doubt that considering
tlie various weapons with which the accused had gone
armed they must have known that there was likelihood of a. murder being committed in prosecution of
their common object ".
The High Court also found that all the appellants had
gone together to take forcible possession a.lid were
armed with different weapons and ta.king their relationship into consideration it was unlikely that they
did not know that Miza.ji was armed with a. pistol and
even if the common object of the assembly was not to
commit the murder of Ramesh war or any other member of the party of the complainants " there can be no
doubt that the accused fully knew, considering jthe
nature of weapons with which they were armed, namely, pistol and la.this, that murder was likely to be committed in their attempt to take forcible possession
over the disputed, land ". The High Court further
'
. (1) S.C.R. SUPREME COURT REPORTS
945
found that the accused had gone prepared if necessary
z95B
t
to commit the murder in prosecution of their common
Mizaji
object of taking forcible possession. They accepted
and Another
the testimony of Matadin and Hansra.m who stated
v.
that all the accused had asked Ram Sa.rup and his The State of u. P.
companions to go a.way, otherwise they would finish
-
all of them and when they resisted Mizaji accused fired
Kapur 1·
the pistol at them and thus in view of the nature of
the weapons with which they had gone to the disputed
piece of land, " they knew that murder was likely to
be committed in prosecution of their object". Another
finding given by the High Court was that the appellants wanted to forcibly dispossess the complainants
and with that object in view they went to the disputed
~eld to take forcible possession and that the complainant's party on coming to know of it went to the field
and resisted. Mizaji fired the pistol and thus caused
the death of Rameshwa.r. The High Court also held :-
" We are also of the opinion that the act of the
accused was premeditated and well-designed and that
the accused considering the circumstances of the case
and the weapons with which they were armed, knew
that murder was likely to be committed in accomplishment of their common object."
For the appellants it was contended that the High
Court was not justified in drawing the inference that
other members of the party of the appellants had
knowledge of the existence of the pistol. There is no
doubt that on the evidence the father Taj.Singh must
have known that the son, Mizaji, had a pistol. And
in the circumstances of this case the High Court cannot be said to have erroneously inferred as to the
knowledge of the rest as to the possession of pistol by
Mizaji.
The question for decision is as to what was the
common object of the unlawful assembly and whether
the offence of murder was committed in prosecution of
the common object or was such an offence as the
members of the unlawful assembly knew was likely to
be committed in prosecution of the common object. It
was argued on behalf of the appellants that the
ll9
946
SUPREME COURT REPORTS [1959] Supp.
I95B
common object was to take forcible possession and that
murder was committed neither in prosecution of the
... :~;;,,..
common object of the unlawful assembly nor was it
v.
such as the members of that assembly knew to be
The State of u. P. likely to be committed. That the common object 9f
the unlawful assembly was to take forcible possession
Kap"' f.
of the Sukhana field cannot be doubted. Can it be
said in the circumstances of this case that in prosecution of the common object the members of the unfawful assembly were prepared to go to the extent of
committing murder or they knew that it was likely to
be committed ? One of the members of the assembly
Tej Singh was armed with a spear. His son Mizaji
was armed with a pistol and others were carrying
lathis. The extent to which the members of the unlawfnl assembly were prepared to go is indicated by
the weapons canied by the appellants and by their
conduct, their collecting where Tej Singh was and also
the language they used at the time towards the complainant's party. The High Court has found that the
appellants "had gone prepared to commit murder if
necessary in the prosecution of their common object of
taking forcible poss~ssion of the land ", which it based
on the testimony of l\fatadin and Hansraj who deposed
that when the complainant's party arrived and objected to wlrnt the appPl!ants were doing they (the appellm1ts) " collected at once" and asked Ram Sarup and
his companions to go away otherwise they would
finish all of them and when the latter refused to go
away, the pistol was tired. That finding would indicate the extent to which the appellants were prepared
to go in the prosecution of their common object which
was to take forcible possession of the Sukhana field.
The High Court also found that in any event the case
fell under the second part of s. 149, Indian Penal Code
in dew of the weapons with which the members of
the unlawful assembly were armed and their conduct
which showed the extent to which they were prepared
to go to accomplish their common object.
1
Counsel for the appellants relied on Queen v. Sabid
Ali('), aud argued thats. 149 was inapplicable. There
(1) (187 J) 20 \Y,R. 5 Cr.
t
(1) S.C.R. SUPREME COURT REPORTS
94:7
the learned Judges constituting the full bench gave
r95B
differing opinions as to the interpretation to be put on
Mizaji
s. 149, Indian Penal Code. That was a case where
and Another
the members of an unlawful assembly went to take
v.
___ _
forcible possession of a piece of land. The view of the The State of u. P.
majority of the .Judges was that finding unexpected
Kapur ].
opposition by one member of the party of the complainants and also finding that they were being overpowered by him, one of the members of the unlawful
assembly whose exact time of joining the unlawful
assembly was not proved fired a gun killing one of the
occupants of the land who were resisting forcible dispossession. It was also held that the act had not
been done with a view to accomplish the common
object of driving the complainants out of the land, but
it was in consequence of an unexpected counter-attack.
Ainslie, J., was of the opinion that the common object
of the assembly was not only to forcibly eject the
occupants but to do so with show of force and that
common object was compounded both of the use of the
means and attainment of the end and that it extended
to the committing of murder. Phear, J., said that the
offence committed must be immediately connected
with that common object by virtue of the nature of
the object. The members of the unlawful assembly
must be prepared and intend to accomplish that object
at all costs. The test was, did they intend to attain
the common object by means of murder if necessary ?
If events were of sudc}en origin, as the majority of the
learned Judges held them to be in that case, then the
responsibility was entirely personal. In regard to< the
second part he was of the opinion that for its application it was necessary that members of the assembly
must have been aware that it was likely that one of
the members of the assembly would do an act which
was likely to cause death. Couch, C. J., was of the
opinion that firing was not in prosecut.ion of the common object of the assembly and that there was not
much difference between the first and the second part
of s. 149.
He said:-
"At first there does not seem to be much difference
between the two parts of the section and I think the
948
SUPREME COURT REPORTS [1959] Supp_
1958
cases which would be within the first, offences committed in prosecution of the common object, would be,
Mizaji
generally, if not always, within the second, namely,
and Another
v.
offences which the parties knew to be likely to he_
The State of u. P. committed in the prosecution of the common object.
But I think there may be cases which would come
Kapur J.
within the second part and not within the first."
Jackson, J., held in the circumstances of that case that
the assembly did not intend to commit nor knew it likely
that murder would be committed. Pontifex, J., interpreted the section to mean that the offence committed
must directly flow from the common object or it must
so probably flow from the prosecution of the common
object that each member might antecedently expect it
to happen. In the second part "know " meant to -
know that some members of the assembly had previous
knowledge that murder was likely to be committed.
This section has been the subject matter of interpretation in the various High Court of India, but every
case has to be decided on its own facts. The first part
of the section means that the offence committed in
prosecution of the common object must be one which
is committed. with a. view to accomplish the common
object. It is not necessary that there should be a
preconcert in the sense of a meeting of the members
of the unlawful assembly as to the common object;
it is enough if it is adopted by all the members and is
shared by a.II of them. In order that the case may
fall under the first part ·the offence committed must
be connected immediately with the common object of
the unlawful assembly of which the accused were
members. Even if the offence committed is not in
direct prosecution of the common object of the assembly, it may yet fall under s. 149 if it can be held that
the offence was such as the members knew was likely to
be committed. The expression ' know ' does not mean
a mere possibility, such as might or might not happen.
For instance, it is a matter of common knowledge that
when in a village a body of heavily armed men set
out to take a woman by force, someone is likely to be
killed and all the members of the unlawful assembly
must be aware of that likelihood and would be guilty
t
(1) S.C.R. SUPREME COURT REPORTS
949
under the second part of s. 149. Similarly, if a body
of persons go armed to take forcible possession of the
Mizaji
land, it would be equally right to say that they have
and ;Jnot!tcr
the knowledge that murder is likely to be committed if
v.
the circumstances as to the weapons carried and other 1 he State 0! u. P.
conduct of the members of the unlawful assembly
-
Kapitr j.
clearly point to such knowledge on the part of them
all.
There is a great deal to be said for the opinion
of Couch, C. J., in Sabid Ali's case (1) that when an
offence is committed in prosecution of the common
object., it would generally be an offence which the
members of the unlawful assembly knew was likely to
be committed in prosecution of the common object.
That, however, does not make the converse proposition true; there may be cases which would come
within the second part, but not within the first. The
distinction between the two parts of s. 149, Indian
Penal Code cannot be ignored or obliterated. In every
case it would be an issue to be determined whether the
offence committed falls within the first part of s. 149
as explained above or it was an offence such as the
members of the assembly knew to be likely to be
committed in prosecution of the common object and
falls within the second part.
Counsel for the appellants also relied on Ghikkarange
Gowde v. State of Mysore (2).
In that case there were
special circumstances which were sufficient to dispose
of it. The charge was a composite one mixing up
common intention and common object under ss. 34
and 149, Indian Penal Code and this Court took the
view that it really was one under s. 149, Indian Penal
Code. The charge did not specify that three of the
members had a separate common intention of killing
the deceased, different from that of the other members
of the unlawful assembly. The High Court held that the
common object was merely to chastise the deceased,
and it did not hold that the members of the unlawful
assembly knew that the deceased was likely to be
killed in prosecution of that common object. The
person who was alleged to have caused the fatal injury
was acquitted. This Court held that on the findings
(1) (1873) 20 W. R. 5 Cr.
(2) A.I.R. 1956 S.C. 731.
950
SUPREME COURT REPORTS
[1959] Supp.
1958
of the High Court there was no liability under s. 34
Mizaji
and further the charge did not give proper notice nor
and Another
a reasonable opportunity to those accused to meet
v.
that c_harge.
On these findings it was held that conThe Stat• of u. p, viction under s. 302 read with s. 149 was not justified
in law nor a conviction under s. 34.
Kapur J.
It was next argued that the appellants went to take
possession in the absence of the complainants who
were in possession and therefore the common object
was not to take forcible possession but to quietly take
possession of land which the appellants believed wa~
theirs by right. In the .first place there were proceedings in the Revenue Department going on about the
land and the complainants were opposing the claim of
the appellants and then when people go armed with
lethal weapons to take possession ofland which is in
possession of others, they must have the knowledge
that there would be opposition and the extent to
which they were prepared to go to accomplish their
common object would depend on their conduct as a
whole.
The finding of the High Court as we have pointed
out was that the appellants had gone with the common object of getting forcible possession of the fand.
They divided themselves into three parties, Maiku
appellant was in the field where jowar was sown and
he was ploughing it, Mizaji, Subedar and Machal were
in the sugar field and cutting the crop. Tej Singh was
keeping watch. When the·party of the complainants
on being told of what the appellants were doing came,
they protested to Tej Singh. Thereupon, all the
/
members of Tej Sing h's party gathered at the place
where 'l'ej Singh was and asked the complainants
" to go away otherwise they would be finished ", but
they refused to go. Thereupon Tej Singh asked Mizaji
to fire at them and Mizaji fired the pistol which he was
carrying in the fold of his dhoti as a result of which
Rameshwar was injured, fell down and died l hour
later. It was argued on behalf of the appellants that
in these circumstances · it cannot be said that the
offence was committed in prosecution of the common
object of the assembly which was clear from the fact
......
, .
(I) S.C.R. SUPREME COURT REPORTS
951
that the party had divided itself into three parts
r95S
and only Mizaji used his pistol and the other appelMizaji
lants did not use any weapon and just went away.
and Another
Both the Courts below have found that the pistol
v.
·
was fired by Mizaji and thus he was responsible for The State of u. P.
causing the death of Rameshwar which would be
Kapur J.
murder and also there is no doubt that Tej Singh
would be guilty of abetment of that offence.
But the
question is whether s. 149 is applicable in this case
and would cover the case of all the appellants?
This
has to be concluded from the weapons carried and the
conduct of the appellants. Two of them were armed
one with a spear and the other with a pistol. The
rest were armed with lathis. The evidence is that
when the complainants' party objected to what the
appellants did, they all collected together and used
threats towards the complainants' party telling them
to go away otherwise they would be finished and this
evidence was accepted by the High Court. From this
conduct it appears that members of the unlawful
assembly were prepared to take forcible possession at
any cost and the murder must be held to be immediately connected with the common object and therefore
the case falls under s. 149, Indian Penal Code and they
are all guilty of murder. This evidence of Hansram
and Matadin which relates to a point of time immediately before the firing of the pistol shows that the members of the assembly at least knew that the offence of
murder was likely to be committed to accomplish the
common object of forcible possession.
It was then contended that Mizaji did not want to
fire the pistol and was hesitating to do so till he was
asked by his father to fire and therefore penalty of
death should not have been imposed on him. Mizaji
carried the pistol from his house and was a member of
the/party which wanted to take forcible possession of
the' land which was in possession of the other party
and about which proceedings were going on before the
Hevenue Officer.
He fully shared the common object
of the unlawful assembly and must be taken to have
carried the pistol in order to use it in the prosecution
of the common object of the assembly and he did use
952
SUPREME COURT REPORTS [1959] Supp.
1958
it. Merely because a son uses a pistol and causes the
death of another at the instance of his father is no
•• :~=~:her mitigating circumstance which the courts would take
v.
into consideration.
The State of u. P.
In our opinion the courts below have rightly imposed the sentence of death on Mizaji. Other appelKapur 1 ·
lants being equally guilty under s. 149, Indian Penal
Code, have been rightly sentenced to imprisonment
for life.
December 18.
The appeals must therefore be dismissed.
Appeals dismissed.
RAJA BAHADUR K. C. DEO BHANJ
v.
RAGHUNATH MISRA AND OTHERS
(SYED JAFER IMAM, S. K. DAs and J. L. KAPUR, J,J.)
Electio11-Corrupt Practice-Perso11 in service of Government,
obtaining assistance of-Sarpanch of Grama Panchayat in OrissaWhether such a pel'Son-lf Sarpanch is a revenue officer or a village
accountant-Repreuntatio11 of the People Act, r95r (43 of r95r),
s. r23(7)(j)-Orissa Grama Panchayats Act, r948 (Orissa XV of
r948).
The appellant was declared elected to the Orissa Legislative
Assembly and the first respondent filed an election petition
challenging the election, inter alia. on the ground that the appelr
!ant had committed the corrupt practice nnder s. r23(7)(f) Representation of the People Act, 1951, by obtaining the assistance
of Sarpanches of certain Grama Panchayats for the furtherance
of the prospects of his election. The petition was dismissed by
the Election Tribunal but on appeal, was allowed by the High
Court and the election was set aside. The High Court held that
a Sarpanch was a person in the service of the Government within the meaning of s. r23(7)(f) of the Act.
I
Held, that a Sarpanch of Grama Panchayat in Orissa was not
-4il
one of the persons contemplated bys. r23(7)(f) and consequently
J
•
the appellant was not guiliy of any corrupt practice in obtaining
assistance of Sarpanches. Two conditions must co-exist before
s. r23(7)(f) could apply to a Sarpanch: (i) that he was in the
service of the Government, and (ii) that he fell within the class