# RAMU GOPE AND ORS v. STATE OF BffiAR

- **Citation:** [1969] 2 S.C.R. 558
- **Court:** Supreme Court of India
- **Decided:** 1968-10-29
- **Case number:** Criminal Appeal No. 145 Of 1966
- **Bench:** J. C. Shah, V. Ramaswami, A. N. Grover
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/ramu-gope-and-ors-v-state-of-bffiar-4564
- **Pages:** 5

## Headnote

B
Indian Penal Code, 1860, ss. 149, 302-Convwtion by trial Court of
,.,,
H as one member of unlawful assembly under s. 302 for causing death
""'
of a person in pursuance of common ob;ect and of others under s. 302
read with s. 149-High Court acquitting H in appeal but confirming conviction of others-If conviotipn sustainable.
The appellants and one H were tried on the charge that on July 2,
1962 they had formed an unlawful assembly and in prosecution of the
common object of the unlawful assembly
i.e., to rescue their cattle
which had damaged the maize crop of one B and had on that account been
detained by the villagers, made an assault on persoris resisting the rescue
causing injuries to various PersOns including B as a result of which B
died.
The Trial Court, relying on the evidence of certain witnesses, held
that H had caused injuries with a spear to B which resulted in her death.
It therefore convicted H of an offence under s. 302 I.P.C. and the appellants for an offenoe under s. 302 read withs. 149 I.P.C. The High Court
in appeal acquitted H as it entertained a doubt about his presenoe in
the unlawful assembly, but confirmed the conviction of the other appellants.
In appeal to this Court it was contended on behalf bf the appellants
that because of the acquittal of H, the conviction of the other appellants
for an offence under s. 302 read with s. 149 I.P.C. could not, in law,
be sustained; when according to the prosecution case H was responsible
for causing the; death of B and he was acquitted, the appellants who
were charged with sharing the common object of the unlawful assembly
could not be
convicted for the vicarious liability arising out of the
offence committed in prosecution of the common object of the unlawful
assembly.
HELD :
Dismissing the appeal :
The order of conviction of the appellants for the offence
under
s. 302 read with s. 149 I.P.C. was not rendered illegal because H was
held not to have been a member of the unlawful assembly. [562 Bl
c
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There was clear evidence to show that B was one of the persons
'
upon whom an attack was made and inluries inflicted! by the unlawful
,.
assembly of which the appellants and others were
members. On the
G
l
findings of the High Court, the offender who actually caused injuries to
B could not be ascertained : it follows that the injuries wern caused to
B by sbme members of the unlawful assembly. [561 HJ
Failure to prove the presence
of the named offender
among
the
members of the unlawful assembly will not affect the criminality of those
who are proved to be members of the asse'!'bly if the other conditions
of the applicability of s. 149 I.P.C. be estabhshed. [561 A]
H

## Text

558
RAMU GOPE AND ORS.
A
v.
STATE OF BffiAR
October 29, 1968
[J. C. SHAH, V. RAMASWAMI AND A. N. GROVER, JJ.J
B
Indian Penal Code, 1860, ss. 149, 302-Convwtion by trial Court of
,.,,
H as one member of unlawful assembly under s. 302 for causing death
""'
of a person in pursuance of common ob;ect and of others under s. 302
read with s. 149-High Court acquitting H in appeal but confirming conviction of others-If conviotipn sustainable.
The appellants and one H were tried on the charge that on July 2,
1962 they had formed an unlawful assembly and in prosecution of the
common object of the unlawful assembly
i.e., to rescue their cattle
which had damaged the maize crop of one B and had on that account been
detained by the villagers, made an assault on persoris resisting the rescue
causing injuries to various PersOns including B as a result of which B
died.
The Trial Court, relying on the evidence of certain witnesses, held
that H had caused injuries with a spear to B which resulted in her death.
It therefore convicted H of an offence under s. 302 I.P.C. and the appellants for an offenoe under s. 302 read withs. 149 I.P.C. The High Court
in appeal acquitted H as it entertained a doubt about his presenoe in
the unlawful assembly, but confirmed the conviction of the other appellants.
In appeal to this Court it was contended on behalf bf the appellants
that because of the acquittal of H, the conviction of the other appellants
for an offence under s. 302 read with s. 149 I.P.C. could not, in law,
be sustained; when according to the prosecution case H was responsible
for causing the; death of B and he was acquitted, the appellants who
were charged with sharing the common object of the unlawful assembly
could not be
convicted for the vicarious liability arising out of the
offence committed in prosecution of the common object of the unlawful
assembly.
HELD :
Dismissing the appeal :
The order of conviction of the appellants for the offence
under
s. 302 read with s. 149 I.P.C. was not rendered illegal because H was
held not to have been a member of the unlawful assembly. [562 Bl
c
D
E
f •
F
There was clear evidence to show that B was one of the persons
'
upon whom an attack was made and inluries inflicted! by the unlawful
,.
assembly of which the appellants and others were
members. On the
G
l
findings of the High Court, the offender who actually caused injuries to
B could not be ascertained : it follows that the injuries wern caused to
B by sbme members of the unlawful assembly. [561 HJ
Failure to prove the presence
of the named offender
among
the
members of the unlawful assembly will not affect the criminality of those
who are proved to be members of the asse'!'bly if the other conditions
of the applicability of s. 149 I.P.C. be estabhshed. [561 A]
H
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
145 Of 1966.
RAMU GOPE V. BIHAR STATE (Shah, J.)
559
,~
A
Appeal by special leave from the judgment and order dated
January 29, 1966 of the Patna High Court in CrimmaI Appeal
No. 231 of 1963.
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D. Goburdhun, for the appellants.
B. P. Jha, for the respondent.
The Judgment o;f the Court was delivered by
Shah, J. At mid-day on July 2, 1962, an unlawful assembly
of about 30 persons armed with lethal weapons made an assault
upon certain villagers of Mananki Khandha who were engaged in
agricultural operations and caused injuries to six persons. Budhla
one of the persons injured died as a result of the injuries, a few
hours after the assault.
The seven appellants in this appeal and
one Harihar Gope were tried before the Additional Sessions Judge,
Patna, for offences under s. 302 read with ss. 149, 147, 148, 323,
324, 325 read with 34 and 326 I.P. Code, on the charge that they
had fonned an unlawful assembly and had committed rioting
and in prosecution of the common object of the unlawful assembly, viz. to rescue their cattle which had damaged the maize crop
of Budhia and had on that account been detained by the villagers,
and to assault persons resisting the rescue, and had caused injuries
to the victims as a result of which Budhia died.
The Sessions
Judge held, relying on the evidence of four witnesses P.Ws. 5, 8,
12 and 18, that Harihar Gope had caused injuries with a spear to
Budhia which resulted in her death. He accordingly recorded an
order of conviction against Harihar Gope of the offence under
s. 302 I.P. Code and against the other appellants for the offence
under s. 302 read withs. 149 I.P. Code.
The High Court of Patna in appeal acquitted Harihar Gope
for the offence under s. 302 I.P. Code for they entertained doubt
about Harihar Gope's presence in the unlawful assembly in question. The High Court observed that Harihar Gope was a resident
of another village and had no reason to bring his cattle to the
village Mananki Khandha for grazing, and that the name of Harihar Gope was not mentioned in the first infonnation which was
given at the police station in the presence of the witnesses who
deposed to the assault made on Budhia by Harihar Gope.
The
State has not appealed against that order of acquittal.
The High Court has however, confinned the conviction of the
other appellants for the offence under s. 302 read with s. 149 I.P.
Code.
In this Court, counsel for the appellants contends that because
of the order of acquittal passed by the High Court in favour of
Harihar Gope, conviction of the other appellants for the offence
under s. 302 read with s. 149 I.P. Code cannot, in law, be sus-
560
SUPREME COURT REPORTS
[1969] 2 S.C.R.
tained. Counsel argues that if Harihar Gope who was according
to the case of the prosecution responsible for causing the death of
Budhia is acquitted the appellants who were charged with sharing
the common object of the unlawful assembly cannot be convicted
for the vicarious liability arising out of the offence committed in
prosecution of
the common object of the unlawful assembly.
There is no substance in that argument. The case for the prosecution when analysed consists of four parts-(1) that there was
an unlawful assembly of 30 persons the common object of which
was to forcibly rescue cattle detained by the villagers of Mananki
Khandha and to beat up all those who resisted;
(2) that six
villagers of Mananki Khandha were beaten up by the members
of the unlawfol assembly and Budhia died in consequence of the
injuries suffered by her; ( 3) that the injuries were caused to the
six victims by the members of the unlawful assembly in prosecution of the common object of the unlawful assembly or the injuries
were such that the members of the assembly knew to be likely to
be caused; ( 4) that Harihar Gope was a member of the unlawful
assembly, and he caused injuries to Budhia in prosecution of the
common object of the assembly in consequence of which she died.
The result of the findings of the High Court is that the first three
parts are made ouv but not the last.
On that account however
we are uaable to hold that the appellants who are proved to be
members of the unlawful assembly escape liability for conviction
under s. 302 read withs. 149 I.P. Code. On the finding recorded by the High Court it inevitably follows that fatal injuries were
caused to Budhia by a member of the unlawful assembly which
the members of the assembly knew to be likely to be caused in
prosecution of the common object of the unlawful
assembly.
The State, however, failed to establish that it was Harihar Gope
who caused those injuries. Failure to establish that a member or
members of the unlawful assembly named by the witnesses for
the State cause the particular injury which resulted in the death
of Budhia will not result in the rejection of the case of the State
against persons proved to be members of the unlawful assembly,
if the common object of the unlawful assembly and the commission of the offence in the prosecutiOn of the common object or
which the members knew to be likely to be committed be proved.
Where a member of an unlawful assembly is named as an
offender who committed an offence for which the members of the
unlawful assembly are liable under s. 149 I.P. Code, and the evidence at the trial is insufficient to establish that the named person
committed the act attributed to him, he may still be convicted
of the offence if it is proved that he was a member of thei unlawful
assembly and that the act was done by some member of the
assembly in prosecution of the common object or which the members knew was likely to be committed in prosecution of that
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RAMU GOPE v. BIHAR STATE (Shah, J,)
561
object. In our judgment, failure to prove the presence of the named
offender among the members of the unlawful assembly will not
affect the criminality of those who are proved to be members of
the assembly if the other conditions of the applicability of s. 14?
I.P. Code be established. If the Court refuses to accept the testImony of witnesses who speak to the presence of and part played
by a named offender, the weight to be attached to the testimony
of those witnesses insofar as they involve others may undoubtedly
be affected, but it cannot be said that because the testimony of
witnesses who depose to the assault by the named offender is not
accepted, other members proved to be members of the unlawfu;
assembly escape liability arising from the
commission of the
offence in prosecution of the common object of the assembly.
The High Court found that on the day in question more than
30 persons formed an unlawful assembly, the common object of
which was to rescue cattle detained by the villagers of Mananki
Khandha, and to kill those who resisted, and that members of the
unlawful assembly committed an assault on the villagers and
severely beat up the villagers including Budhia in prosecution of
the common object. The offence being such that it was known
to be likely to be committed, every person who was a member of
that unlawful assembly at the time of the commission of
the
offence would by virtue of s. 149 I.P. Code be guilty of the offence
committed. The argument that Harihar Gope alone had the objeidt of qa,using the death of Budhia cannot on the evidence be
accepted as correct.
The object to beat up and kill those who
resisted the rescue of the cattle detained was according to the case
for the prosecution common to all members of the unlawful assembly, and that object was established by abundant evidence. Proof
of the common object of the unlawful assembly did not depend
upon the presence therein of Harihar Gope. Failure to establish
that Harihar Gope was a member of the unlawful assembly did
not, in our judgment, affect the liability of the persons proved to
be members of the unlawful assembly for the acts done in prosecution of its common object, or which they knew to be likely to be
committed in prosecution of the object thereof. When a concerted
attack is made on the victim by a large number of persons it is
often difficult to determine the actual part played by each offender.
But on that account for an offence committed by a member of the
unlawful asse'!lbly in the prosecution of the common object or for
an offence which was known to be likely to be committed in prosecution of the common object, persons proved to be members cannot escape the consequences arising from the doing of that act
which amounts to an offence.
There is clear evidence on the record to show that Budhia was
one of those persons upon whom an attack was made by the unlawful assembly of which the appellants and others were members.
562
SUPREME COURT REPORTS
[1969] 2 S.C.R.
In the assault made by the members of the assembly Budhia as
A
well as other persons were injured. On the findings of the High
Court, the offender who actually caused injuries to Budhia cannot
be ascertained : it follows that the injuries were caused to Budhia
by some member of the unlawful assembly, and that Budhia succumbed to those injuries. In our judgment, the order of conviction
of the appellants, other than Harihar Gope, for the offence under
B
s. 302 read with s. 149 I.P. Code is not rendered illegal, because
Harihar Gope is held not to have been a member of the unlawful assembly.
The appeal fails and is dismissed.
R.K.P.S.
Appeal dismissed.
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