# STATE OF BIBAR v. MATHU PANDEY .t ORS - **Citation:** [1970] 1 S.C.R. 358 - **Court:** Supreme Court of India - **Decided:** 1968-12-05 - **Case number:** Criminal Appeal No. 203 of 1966 - **Bench:** S. M. SiKRl, R. S. Bachawat, V. IlutASWAMI - **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/state-of-bibar-v-mathu-pandey-t-ors-4774 - **Pages:** 7 ## Headnote Jndia11 Penal Codt, 1860, s. 302 rtad with s. 149 and Ss. 103, 99Parry of accused persons preventing theft from land by another groupCausing death of two persons In attacking party-I/ unlawful tmembly and committed offence uruler s. 302 read with s. 149-Whether entitled l-0 exercise right of private defence undtr s. 103 and causing deaJh. In proceedings against the accmed respondents the prosecution c:uo wu that on certain land belonging to one B where some of his men wae pthering fruits, the respondents, armed with bhallas, lathis, etc., attacked these men killing two of them and inj~ others. Thc trial coon convicted the respondents under s. 302 read wuh s. 149 I.P.C. of the murder of the I\\ o deceased persons and of offences for inflicting injuric3 on other persons. The respondent<" appeal 10 · rhe High Court was allowed and that C.urt set aside all the convictions and sentences. The Hi&h Court found that the land in question was in the possession of one of the respondents and that on !he date of occurrence, rhe members ot the prooccutioo party including the murdered victims committed thefto of fruits on the land and that the respondents had !he right df private defence of property against rhe theft; the theft of the fruits wu committed under such circumatances as might reasonably cause apprehension that death or grievous bodily h!!T! would be the consequence if the ri¥ht of private defence wu not exercised. Accordingly, the reopondenlJ' ngbt of private defence r supposed right by means of criminal foree or show of criminal force to any person. Sec1ion 141 must be read with S.. 96 to 106 dealing with the ri~ht of private de'fence. Under '· 96 nolhin& is an olfeoce whicb is H done rn the exercise of the right of private defence. The a.ssertiOll of a risJit of private defence within the limits prescribed by law cannot fall within the expression "to enforce any right or suppooed right" in the founh clause of s. 141. [362-C] A B c D E F G H BIHAR v. MATHU PANDEY (Bachawa~. J.) 359 As it bad been fOllDd in the present case that the land in question was in the possession of one of the respondents, the object of the respon .. dents' party was to prevent the commission of theft of the fruits in exercise of their right r supposed right by means of criminal foree or show of criminal force to any person. Sec1ion 141 must be read with S.. 96 to 106 dealing with the ri~ht of private de'fence. Under '· 96 nolhin& is an olfeoce whicb is H done rn the exercise of the right of private defence. The a.ssertiOll of a risJit of private defence within the limits prescribed by law cannot fall within the expression "to enforce any right or suppooed right" in the founh clause of s. 141. [362-C] A B c D E F G H BIHAR v. MATHU PANDEY (Bachawa~. J.) 359 As it bad been fOllDd in the present case that the land in question was in the possession of one of the respondents, the object of the respon .. dents' party was to prevent the commission of theft of the fruits in exercise of their right unaer · s. 147 of the Indian Penal "Code and sentenced to'.iigoroiis llnpriwnment for six months each. The remaining resP.9ndents WC?re convicted under s. 148 of the Indian Penal. Code 'and sent.enced to rigorous imprisonment for one year A B c D E F G H A n c D E ' G H ' BIILU v. MATHU PANDBY (Bachawa~, J.) 361 each. Bife an4 Thegu were convicted under s. 323 of the. Indian Penal Code for causing hurt to Dewal and sentenced to ngorous . imprisonme111t for six months each. The sentences ct each res. · poildent were to run concurrently, The trial court held that ( ~) Bhaiya Saheb was in possession of plot no. 1311; (2) while Ramswarup and '.Ramdhari were collecting mahua o~ ~e .Plot, the respoildents armed with bhalas, garassas and lathis inflicted fatal injuries on them with a view to forcibly prevent them from collecting the mahua, (3) Thegu and Bife assaulted pe':"al with lathis, ( 4) the accused persons knew that there was likelihoo4 of murders being COllllllitted in prosecution of the common object, and ( 5) the assailants inflicted the injuries on Ramswarnp and Ramdhari with the intention of murdering them. The respoildents filed an appeal in the High Court of Patna. The High Court allowed the appeal and set aside all the convictions and sentences. The High Court found that ( 1). respondent Chandradeo was the thikadar of plot no. 1311 and was in possession of the mahua trees standing thereon, ( 2) on the date of the occurrente, the members of the prosecution party including Ramdhari and Ramswarup committed theft on the fruits of the mahua trees, and the respondents had the right of private defence of property against the theft; ( 3) Ramswarup carrying a tangi and Ramdhati carrying a danta caused severe injuries to respondent Mathu on his head, leg and that while doing so they were not defending themselves; Mathu became unconscious. He regain. ed consciousness on April 14, 1962. ( 4) the, theft of mahua fruits was collll11itted under such circumstances as might reasonably cause apprehension that death or grievous hurt would be the consequence if the right of private defence was not exercised. Accordingly, the respondents' right of private defence of property extended under s. 103 of the Indian Penal Code to voluntarily causing death to :Ramdhari and Ramswarnp subject to the res. trictions mentioned in s. 99; (5) the person or persons who cau~ t!te two deaths exceeded the right of private defence as they inflicted more harm than was necessary for the purpose of defence. These findings are based on adequate evidence and are not shown to be perverse. In this appeal under art. 136 of . the Constitution from an order of acquittal passed by the High Court, we are not inclined to interfere with the above findings. The question is whether in these circumstances the High Court rightly acquitted the appellants. . The fatal woulids on the abdominal cavities of Ramdhari and Ramswarup were caused by bhalas. The prosecution case was that Chandradeo, Dayanand and Nasir were armed with bhalas., The High Court rightly. held that the prosecution failed to establish that Chandradeo was armed with a bhala. Tho proseeution witnesses said generally that all the respondents swroundod Ram- SUPREME COUil! llEPORTS [ 1970] I S.C.R, dhari and Ramswarup and assaulted them. The prosecution case has been found to be false in material respects. It is not possible to record the finding that Cbandradco, Dayanand and Nasir were armed wilh bhalas. Some of the respondents were armed with bhalas but it is not possible to say which of them were so armed and which of them inflicted the fatal wounds on Ramdhari and Ramswarup. Accordingly we cannot convict any of the respondents under s. 302. The only question is whether they can be convicted under s. 302 read with either s. 149 ors. 34. In order to attract the provisions of s. 149 the prosecution must establish that there was an unlawful assembly and that the crime was committed in prosecution of the common object of the as&embly. Under the fourth clause of s. 141 an assembly of five or more persons is an unlawful assembly if the common object of its members is to enforce any right or supposed light by means nf oriminal force or show of criminal force to any person. Section 141 must be read with ss. 96 to 106 dealing with the right of private defence. Under s. 96 nothing is an offence which is done in the exercise of the right of private defence. The assertion of a right of private defence within the limits prescribed by law C&llllOi fall within the expression "to enforce any right or supposed right" in the fourth clause of s. 141. In Kapildeo Singh v. The King(') the High Coun had affinned the appellant's conviction and sentence under s. 147 ands. 304 read withs. 149, without considering the question as to who was actually in possession of the plot at the time of the occurrence. The High Court observed that the question of possession was immaterial and that the appellants party were members of an unlawful assembly, "as both sides were determined to vindicate their rights by show of force or use of force." The Federal Court set aside the convic- '1icln and sentence. It held that the High Court judge stated the law too loosely "if by the use of the word 'vindicate' he meant to include even cases in which a party is forced to maintain or defend his ril!hts''. 'The assembly could not be designated as an unlawful-assembly if its object was to defend property by the use of force within the limits prescribed by law. The charges against the respondents were that they "were members of an unlawful assembly in prosecution of the common object of which, viz .. in forcibly preventing Ramdhari Sin~h and Ramswarun Singh from collecting mahua from Barmania field ,.¢f village Phatnapi and if necessary in causing the murder of the said two persons. for the purpose. "that some of them caused the murders of Ramdhari and Ramswarup and that thereby all of them committed offences under s. 302 read with s. 149. We have found that respondent Chandradeo was in possession of plot (I) (t 949-SOJ F.C.R. 834. A B c D E F G H A 8 c D E F G BIHAP. v. MATHU PANDEY (Bachawai, J.) 363 no. 1311 and the mahua trees standing thereon. The object of the respondent's party was to prevent the commission of theft of the mhua fruits in exercise of their right of private defence of property. This object was not unlawful. Nor is it possible to say that their .common object was to kill Ramdhari and Ramswarup. Those who killed them exceeded the right of private defence and may be individually held responsible for the murders. But the murders were not committed in prosecution of the common object of the assembly or were such as the members of the assembly knew to be likely to be committed in prosecution of the common object. The accused respondents cannot be made constructively responsible for the murders under s. 302 read with s. 149. In Kishori Prasad & Ors. v. State of Bihar(') the High Court convicted the appellants under s. 326/149 of the Indian Penal Code though the appellant Hirdaynarain was in lawful possession of the western portion of plot no. 67 and the attempt by the prorecution party to cultivate the same was high-handed. This Court set aside the conviction and sentence. Ramaswami J. observed :- "In a case where the accused person could invoke the right of private defence it is manifest that no charge of rioting under s. 147 or s. 148, Indian Penal Code can be established for the common object to commit an offence attributed in the charge under s. 14 7 or s. 148, Indian Penal Code is not made out. If any accused person had exceeded the right of private defence in causing the death of Chitanu Rai or in injuring Gorakh Prasad it is open to the prosecution to· prove the individual assault and the particular accused person concerned may be convicted for the individual assault either under s. 304, Indian Penal Code or of the lesser offence under s. 326, Indian Penal Code. The difficulty in the present case is that the High Court has not analysed the evidence given by th.e parties and given a finding whether any or which of the appellants are guilty of causing the death of Chitanu Rai or of assaulting Gorakh Prasad. As we have already said, none of the appellants can be convicted of the charge of rioting under s. 148 or of the constructive offence under s. 326/149,.Indian Penal Code." We accordingly hold that the respondents cannot be convicted under s. 302 read with s. 149, Indian Penal Code. Nor is it H possible to convict them under s. 302 read with s. 34. The High Court rightly found that the respondents wanted to prevent the (!) Cr. App, No. 191 of 1966 deed. on 5-12-1968. :364 SUPREME COURT REPORTS [-1970] 1 S.C.R. cgllection· obnaJiua fruits and that a common intention of all of A • thetJ;( fe. murder Ramdhri and Ramswarup was not established . . ;The case· of Gurudittamal v. State of U.P,(1 ) jg distinguishable; In that case the Co~ foμnd that ( 1} the a~cused persons who were in possession of a field bad exceeded the _Egb.t of private defence of property by murdering four perStins who were peacefully harvesting the crops standing on the field and ( 2) each of the. four appellants killed one member of the p(Osecution party and each of them indiyidually committed an offence under s. 302 (see paragraph 6 and end of paragraph 14). In these circumstances, the Court upheld their conviction and sen~ce unller s. 302. The Court also found that the appellants had the ·Common intention to kill the victims and could be convicted under s; 302 'read with s. 34 (see, paragraph 12 and 9). In the present ciwe, .none of the respondents can .be collvicted under s. _302. A• -a Cotri!:tion. Intention to murder Ramdhari or Ramswarup is ·not ~tablished, they cannot be convicted under s. 302 read with· . ~. 34. In the result, the appeal is· dismissed. , . . R.K.P.S. Appeal dismissed: ' o} AI'.lt. 1965 s.c. m. c