# STATE OF U.P v. MAHENDRA SINGH & ORS

- **Citation:** [1975] 2 S.C.R. 418
- **Court:** Supreme Court of India
- **Decided:** 1974-10-16
- **Bench:** Y.V. Chandrachud, R..S. Sarkaria
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/state-of-u-p-v-mahendra-singh-ors-6318
- **Pages:** 7

## Headnote

Indian Penal Code (Act 45 <if 1860;~ss. 141 and 149, Scope of.
Practice- Sentence- Interference by Supreme' Court with order of acquittal of
High Court.
Eighteen persons were char~ed with various offences arising out of five murders.
The trial court found, that there was dispute between the party of the accused and
the party of the deceased regarding the right to take water from a tubewell; that one
of the accused party was !!,ppointed as Thokdar to regulate the distribution of water;
that on the day of the occurrence 1he acx:used pa11y consistini: of over 20 armed persons, went to the field and the Thokdar ordered his compamons to divert the water
from the field of one of the members of the decc:ased party ; that on an objection
. being raised by members of the deceased party the accused opened fire as a result
of which four persons died instantaneously and a fifth was injured, that the four
dead bodies were then dragged to some distance, the injured pc:rson was forced to
walk, the dead bodies were decapitated and limbs severed, the injured person was
hacked to death, II fire was lit, and the five dead bodies were thrown into the fire;
and that the severed heads were carried away by the accused as trophies. On these
findings the trial ~ourt convicted nine accused for offences under ss. 302 and 201
read withs. 149 J.P. C., another accused under s. 201 read withs. 149 I. P. C., and
acquitted the other eight. On appeal, the High Court, on the b3!:is that the Thokdar
could regulate thi; distribution of water and was entitled to enforce his authority
in such manner apd by such means as he thought proper, held, that the common
object of the a5$CI11bly was to redivert the water if necessary by use of force and tl:iat
the Thokdar and his followers had armed themselves with guns and other weapons
only for carrying 'out that object and not for the purpose of committing murder,
and that therefore\ they did not form an unlawful assembly. The High Court accepted the evidence of motive and found that the actual number of persons who took
part in the inciderlt must have been considerably more than five and that all those
who took part in the incident also took part in dragging the dead bodies and in the
attempt to do away with the evidence of murder, but convicted only one out of the
nine persons convicted by the trial court for murder, and convicted five others for
offences under s. ~01 read withs. 149 J. P. C.
In the appeal to this Court,
HELD : (I) Under s. 149, every member of an unlawful assembly is liable
for the offence committed by any member of the assembly in prosecution of its
common object. Such vicarious liability is not limited to the acts done in prosecution
of the common object of the assembly, but extends even to acts which the members
of the assembly knew to be likely to be committed in prosecution of that common
obj{ct. On the findings of the High Court the assembly was undoubtedly an unlawful
assembly as provided by s. 141, fourth paragraph, J. P. C. Under the Explanation
to s. 141, an assembly which was not un'awful when it assembled may subsequently
become an unlawful assembly. The conclusion is also unavoidable that the members
of the assembly knew that the pro!>ecution of even. the limited object of the assembly
was likely to result in the·murder of the members of the opposite party. If the accused were members of the unlawful assembly and had taken a leadinl! part either in
the first or the final stage of the incident they cannot escape their liability for the
five murders. There was but one unlawful assembly and its merrb~rs were animated
by a unity of purpose. Whether one did thi~ or that act, there was identity of interest
among the members of the unlawful a~:mbly and they were actuated by a common
object. Hence the five accuied, who were convicted by the High Court of the offences
under s. 201 read withs. 149 should also be convicted under s. 302 J. P. C. read with
s. 14.9. [421 H-423 E]
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418
STATE OF U.P.
v.
MAHENDRA SINGH & ORS.
October 16, 1974
(Y.V. CHANDRACHUD AND R..S. SARKARIA, JJ.)
Indian Penal Code (Act 45 <if 1860;~ss. 141 and 149, Scope of.
Practice- Sentence- Interference by Supreme' Court with order of acquittal of
High Court.
Eighteen persons were char~ed with various offences arising out of five murders.
The trial court found, that there was dispute between the party of the accused and
the party of the deceased regarding the right to take water from a tubewell; that one
of the accused party was !!,ppointed as Thokdar to regulate the distribution of water;
that on the day of the occurrence 1he acx:used pa11y consistini: of over 20 armed persons, went to the field and the Thokdar ordered his compamons to divert the water
from the field of one of the members of the decc:ased party ; that on an objection
. being raised by members of the deceased party the accused opened fire as a result
of which four persons died instantaneously and a fifth was injured, that the four
dead bodies were then dragged to some distance, the injured pc:rson was forced to
walk, the dead bodies were decapitated and limbs severed, the injured person was
hacked to death, II fire was lit, and the five dead bodies were thrown into the fire;
and that the severed heads were carried away by the accused as trophies. On these
findings the trial ~ourt convicted nine accused for offences under ss. 302 and 201
read withs. 149 J.P. C., another accused under s. 201 read withs. 149 I. P. C., and
acquitted the other eight. On appeal, the High Court, on the b3!:is that the Thokdar
could regulate thi; distribution of water and was entitled to enforce his authority
in such manner apd by such means as he thought proper, held, that the common
object of the a5$CI11bly was to redivert the water if necessary by use of force and tl:iat
the Thokdar and his followers had armed themselves with guns and other weapons
only for carrying 'out that object and not for the purpose of committing murder,
and that therefore\ they did not form an unlawful assembly. The High Court accepted the evidence of motive and found that the actual number of persons who took
part in the inciderlt must have been considerably more than five and that all those
who took part in the incident also took part in dragging the dead bodies and in the
attempt to do away with the evidence of murder, but convicted only one out of the
nine persons convicted by the trial court for murder, and convicted five others for
offences under s. ~01 read withs. 149 J. P. C.
In the appeal to this Court,
HELD : (I) Under s. 149, every member of an unlawful assembly is liable
for the offence committed by any member of the assembly in prosecution of its
common object. Such vicarious liability is not limited to the acts done in prosecution
of the common object of the assembly, but extends even to acts which the members
of the assembly knew to be likely to be committed in prosecution of that common
obj{ct. On the findings of the High Court the assembly was undoubtedly an unlawful
assembly as provided by s. 141, fourth paragraph, J. P. C. Under the Explanation
to s. 141, an assembly which was not un'awful when it assembled may subsequently
become an unlawful assembly. The conclusion is also unavoidable that the members
of the assembly knew that the pro!>ecution of even. the limited object of the assembly
was likely to result in the·murder of the members of the opposite party. If the accused were members of the unlawful assembly and had taken a leadinl! part either in
the first or the final stage of the incident they cannot escape their liability for the
five murders. There was but one unlawful assembly and its merrb~rs were animated
by a unity of purpose. Whether one did thi~ or that act, there was identity of interest
among the members of the unlawful a~:mbly and they were actuated by a common
object. Hence the five accuied, who were convicted by the High Court of the offences
under s. 201 read withs. 149 should also be convicted under s. 302 J. P. C. read with
s. 14.9. [421 H-423 E]
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u. p, STATE v. MAHENDRA SINGH (Chandrachud, /.)
4 U
(~) As reg~rds sentence, three ~f them ~ad taken part in the decapitation and
throwing the dismembered bodies mto the fire. Tfley, were the more ·prominent
members of the unl~wful .assembly and without theit actiye participation the assembly
could not have achieved its common object. In respect of them the sentence of death
imposed by the .trial Court must, therefore, be restored. As ~gards the other two,
there was no evidence as to how they were armed and therefore the trial Court was
justified in imposing the lesser sentence and that sentence should be confirmed.
[423 F-424 CJ
·
(~) As regar~ the t~ree others conyicte~ by the trial court and acquitted by
the High Court, 1t 1s possible to take a view different from that of the High Court
but that woul.d not ju>tify. the setting aside of the f:\iah Court's order of acquittal,
when the findmg of the High Court could not be said. to be perverse or against the
weight of evidence. [424 C-E]
CRIMINAL APPELATE JURISDICTION: Criminal Appeals Nos. 10 & 11
of 1971.
Appeals by Special Leave from the Judgment & Order dated the
19th February; 1970 of the Allahabad High Court in Criminal Appeals
Nos. 20, 194 and 582 of 1969.
0.E. Rana for the appellant.
J. P. Goyal, for respondent Nos. 3-5 (In Crl. A. No. 10/71) and
respondents (In Crl. A. No. 11 of1971).
The Judgment of the Court was delivered by
CHANDRACHUD, J.-Eighteen persons were tried by the. Additional
Sessions Judge, Agra, for various offences arising out of the murders
of five persons : Gajraj Singh, Bhaircn Singh, Budh Singh, Pancham
Singh and Amar Singh. The learned Judge acquitted
eight
persons and convicted the remaining ten. Nine out of these ten Wtire
convicted under sections 302 and· 201 . read with section 149 of
the Penal Code. Seven out of these 'nine were sentenced to death
and the remair.ing two to imprisonment for life. The tenth to be
convicted was held guilt~ under section 201 read with section 149 and
was sentenced to imprisonment for seven years.
In appeals filed by the accused, the High Court of Allahabad
substantially modified the judgment of the trial court. It convicted
only one accused, Dev Chand, under section 302 and upheld the
sentence
of
death
imposed
on
him by the trial court. It
also upheld his conviction and sentence under section 201 read with
section 149. The conviction and sentence of eight of the accused
under section 302 read with section 149 was set aside py the High
Court. It however, uphr.Id the conviction al).d sentenci:i of five out
of those under section 201 read with section 149.
.
These appeals by special leave are filed by the State of Uttar Pradesh
against the judgment of the J:Iigh Court acq~itting eight out o f!ll.e
nine accused who were convicted by the trial court under sechon
302 read with section 149. Thus, the main questions to be considered
in this appeal are whether the respondents were members of an unlawful assembly, whether the common object of that assembly was
to commit the murder of the five persons and whether the respondents
or any of them can be held vicariously liable for those murders.
12-2ss sup c 1/75
420
. SUPREME COURT REPORTS
[197S) 28.c.11 •
The incident leading to the prosecution of the respondents occurred
on Novembr.r, 5, 1967 at Pilwa, District Agra, U.P. There were
disputes between the v!llagers regarding the right to take water from
a tube-well as the .revenue authorities :were unable to fix the turns
for taking water, Makipat Singh-the absconding accused was
ap.;>:>in.tei as a Thokdar to regulate the distribution of water.
Jn or about November 1, 1967 the deceased Gajraj Singh clea:red
the channel leading to his field in an attempt to take water from th~ well.
The Thokdar, Mahipat Singh, asked Gajraj Singh to postpone taking
the water until he himself had finished his turn. Two days before
the inciden~, Mahipat Singh told Gajraj Singh that he could take
water for irtegating his field from the evening of Saturday the 4th
November. Gajraj Singh accordingly started irrigating his field on
Saturday but Mahipat Singh objected once again. Gajraj Singh Bind
his companions affirmed their intention to take water at all costs
whereupon Mahipat Singh is alleged to have left the field uttering
some threats.
A Iittle after sunrise on the next day, the 5th November, an amtecl
group of over twenty persons iincluding the respondents went to Gajraj
Singh's field. Mahipat Singh orderecl his companions to divert the
.water from the field of Sarnam Singh who, it seems, was taking water
from the well after Gajraj Singh had finished irrigating his field. On
an objection being raised by Gajraj Singh and his companiop.s, the
accused are alleged t~ have opened fire as a result of which at
least four out of five persons died instantaneously. Those· four are
Gajraj Singh, his brother Bbiron Singh, his nephew Budh Singh
and a person called Pancham Singh. Amar Singh, the son of Gajraj
Singh, was also injured by a gun-shot, but according to the presecu~
tion he survived for some time,
rhe dead bodies of four victims were then dragged by the accw:ecl
over a distance .of about a furlong. Amar Singh was forced to walk
the distance. At a spot near a catt]e .. shed, six of the accused who
were armed with Gllllflasas beheaded Amar Singh and· severed
his arms and legs. Thereafter, they decapitated the four dead bodies
and sr.vered! their limbs. They smashed two nearby huts, collected
a little wood, asked one Nanney Khan (Since acquitted) to lend pet1rol
from his jeep, sprinkled the petrol on the wood and after setting fire
there to threw the fivo dead bodies into the fire. The severed heads Wtl1'0
carried away as souvenirs. So gi-uesome is the manner -of murder. ·
The prosecution led the evidenee of two· eye-witnesses Punjab
Singh (P.W. 1) and Sant Ram (P.W. 2). While Amar Singh was being
hacked to death, Punjab Singli asked Sant Ram to give informatfon
of the incident to a member of the Armed Constabularr who was
posted at Noorpur, a distance 1>f 3 miles: Punjab Singh himself went
to the Firot~bad police statfon and lodged. the First . Jnformation
Report at ltbout 8 a.m.
After receiving the report from Sa.lit
R.am, a Hoa!! Consta~le of the Armed Constabulary rushed to tho
place of occurrence with three other C.onstables and found tho dead
bodies ~urning. He extinguished the fire and recovered parts of
the bodies from the fire.
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Out o~ the twenty•four accused l:lllJlle~ in. tp.c First Inform~tion
Report, six had absconded. The remaining eighteen were put up
for trial with the result. stated earlier.
We see great difficulty in understanding .the approach and reasoning
of the High Court. The High Court acceptdd the evidence of motive
and held that the village was divided into two factions, one headed
by the deceased Gajraj Singh and the other by .Mahipat Singh. The
High Court also found, specifically, that on the morning of November
5, 1967 the party of the accused, under the leadership of Mahipat
Singh, went to the field of Gajraj Singh "armed with gun and other
weapons". According to the High Court, considering the number of
. persons who were murdered, the distance over which the dead bodies
were dragged and the manner in which those bodies were thrown into
the fire, there could be no doubt "that the actual number of accused
who took part in the incident must have been considerably more
than five".
On the basis of these findings the High Court proceeded to consider
whether the accused could be said to be members of an unlawful
assembly. It answered this question in the negative on the grc.ur.d
that Mahipat Singh and his partymen had gone with guns and Gandasas
to Gajraj. Singh's field in order to prevent Gajraj Singh from taking
the water of the well and not for the purpose of committing the
murders. This is how the High Court explains its point of view:
"As Gajraj Singh and his partymen were waiting in fields
armed with spears and Lathis, so Mahipat Singh and his party·
men had also equipped themselves with guns and other weapons.
But it could not be assumed that they had themselves collected
there to commit murders and therefore; were members of an
unlawful assembly."
The High Court seems to have thought that as a Thokdar, Mahipat
Singh could regulate the distribution of water and was entitled to
· enforce his authority in such manner and by such means as he thought
proper.
In coming to this conclusion ihe High Court fell into a grave error.
Section 141, Penal Code, provides by its Fourth Paragraph that an
· assembly of five or more persons is designated as an "unlawful assembly"
if the common object of the persons composing it is, inter alia, to
deprive any person of the use of water or to enforce any right or
supposed right, by means of criminal force. Tne High Court found
that Mahipat Singh and his followers went to Gajraj Singh's field
with guns and Gandasas in order to enforce the right of Mahipat
Singh to regulate the distribution of well-water. Mahipat Singh may
be assuo:ed to have an unqualified right to regulate the distribution of water but when he collected a gang of twenty odd people and
marched to Gajraj Singh's field to enforce that right, real or supposed
he was clearly collecting an unlawful assembly. The only question
which the High Court had then to consider was as to what was the
object of that unlawful assembly.
·
422
SUPREME COURT REPORTS
[1275] 2 s.c.R.
The ijigh· Court did advert to this' question but it again felHnto
1he error of supposing that if t~ere was "a regular confrontation"
between the :rival factions, it could not be said that the common obj~ct
of the unlawful assembly was to commit the murders. On this aspect
the High Court has expressed :its view thus:
"They no doubt went heavily armed in order to use force
if necessary to carry out their common object. After they
carried out their comm<Jn objects, it appears, there was confrontation between the parties which led to the main incident
resulting in the five deaths."
If the accused went to Gajraj Singh's field heavily armed and if tl1ey
were determined to carry out their object by the use cf criminal force,
it is difficultl to appreciate how it could be said that the limited object
of the assembly was to re-divert the water from the field of Gajraj
Singh. Evidently, the attention of the High Court was not drawn
to the Explanation to section 141, Penal Code, by which "An asrnmbly,
which was not unlawful when it assembled, may subEequently become
an unlawful assembly". Assuming for the sake of argument that there
was some slender justification for the view that the as!embly was
initially not actuated by an unlawful object, it is impossible to agree
that the assembly did not even subrnquently becorr.e an unlawful
assembly. The savage shooting, the decapitation, the comignment of
dead bodies to the fire and the. flight back with- the Eevwtd hea.ds as
trophies, are circumstances too glaring to justify the merciful findings
of the High' Court that the five murders arose out of a confrontation,
that the corn;m0n object of the assembly was not to commit the murders
and that thc:refore none of th1~ accused can be held vicariously liable
for the acts committed by the other members of th1: asEembly.
The High Court missed the essence of section 149. That section
has two facets. Every member of an unlawful assembly is by that
section rendered liable for th1: offence committed by any member of
th~ assembly in prosecution of its common object.
That fixes
vicarious liability of the members cf an unlawful ammbly ·for acts
done in prosecution of the 1;ommon object of the aslembly.
l~ut
such liability is not limited to the 'acts done in profecution of the
common object of the assembly. It extends even to acts which the
members ofithe asrnmbly "knew to be likely to be committed in prosecution of that object." The High Court having found that the common
object of the assembly was to re-divert the water by use of force, if
necessary, and that Mahlpat Singh and hls followers had armed the:mselves. with guns and Gandasas for carrying out that object, the conclusion was unavoidable that the members of the asEembly knew that
the prosecution of even the limited object cf the ammbly was likely
to result in the murder of the opposition. This latter aspect was
overlooked by the High Court.
There can thus be no doubt that Mahipat Singh and such of 1the
respondents whose presence is established formed an unlawful asrembly,
that the conμnon object of the unlawful assembly was to commit the
murders of Gajraj Singh and his men, that even assuming that the
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423
common object wa.s to re-divert the water, if necessary by the use of
force, the members of the assembly knew that in prosecution of
such an object, murders of the opponents were likely to be cornrnitttd
. and therefore, every member of the unlawful assembly would be
vicariously liable for the acts committed by any member of that
assembly.
Three of the respondents: Niwedan Singh, Bhikham Singh and
Nawab Singh have been convicted by the High Court under section
201 read with section 149 on the basis of evidence showing that they
beheaded. the victims, severed their limbs and threw their bodies
in the raging
fire. Two more, Karam Singh and Arjun Singh,
have been cJnvicted similarly as their presence was cle~rly established.
The former had a spear injury on his chest while the clothes of the
latter were stained with human blood. If these accused were members
of the unlawful assembly and had taken a leading part either in the
first or the final stage of the incident, they cannot escape their
liability for the quintuple murders. · There was but one unlawful
assembly and its members were animated by a unity of purpose. Some
fired the fatal shots, some severed the limbs of the victims, some threw
the dead bodies into the fire and some led the victory march.parading
the heads of victims as prizes. But whether one did this or that act,
there was identity of interest among the members of the unlawful
assembly and they were actuated by a common object. Their varying
participation in the different stages of the incident was directed at
achieving the common object-first the murders and then the destruction of evidence establishing the murders. The steps and therefor.e
the acts in prosecution of the common object were manifold, but the
incident was one.
The High Court has itself found that : "all those who took part
in. the incident along with Dev Chand, Karan Singh, Arjun Singh
and the Gandasa-men also took part in taking the dead bodies to the
field of B~dari and tried to do away with the evidence of the murders
by removing the heads and burning the dead bodies." We are unable
to appreciate how in view of this finding the High Court could say
in the very next sentence that their conviction "under section 302 read
wi:h section 149, I.P.C., has to be set aside".
This part of the High Court's judgment therefore requires to be,
rev.,rsed. In addition to their conviction under section 201 read with
section 149 and for the other minor offences, the five iespondcnts
mo::ntioned above shall stand convicted under section 302 read with
.section 149, Penal Code. ·
As regards sentence, a plausible distinction may be made between
the cases of Niwedan Singh, Bhikham Singh and Nawab Singh on the
one hand and of Karan Singh and Arjun Singh on the other. The
three first named are proved to have been armed with Gandasas. The
High Court has found in agreement with the view taken by the trial
court that there was "reliable corroboration" to the evidence of the
eve-witnesses in regard to the part played by these three persons
Tliey decapitated the dead bodies and threw the dismembered bodies
424
SUPJl~ME COURT kliPORTS
(1975] 2 s.C.R.
into the fire. Decapitation of a dead body is of course not murder,
for section 300 of the Penal Code shows that only 'homicide' though
culpable homicide, can be murder. · But considering the. grisly
behaviour of these three .re1spondents th.ere can be no doubt that they
were the more prominent members of the unlawful assembly . and
without their ~ctive participation the assembly could not have ac~'lcd
its common object. We tllerefore restore the orde1: of the Sessions
Court imposing the sentence of death and the other concurrent
sentences on Niwedan Singl1, Bhikham Singh and Nawab Singh.
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Karan Singh and Arjun Singh were undoubtedly membf'l'S of the
1
unlawful assembly but the evidence is not clear enough to show how
the~ were am~ed or if at all. The Sessions Court was therefore justified
in imposing the lesser sm1tenc1~ of life imprisonment on them. We
confirm that sentence and the: other concurrent sentences imposcid
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on them by 1,he Sessions Court.
!
As regards the remaining three' resp6ndents, Mahendra Singh,
Malkhan Singh and Bachan Siingh, the High Court: appears to have
felt considerable doubt about their presence. Some of the abscondil!lg
accused were also armed with guns and the evidence is not clear eitll.er
regarding the presence· of these three accused or about the acts alleg1~
to have bee* committed by them. The two eye-Witnesses were so
placed that they may not have been in a position to notice that
Mahendra Singh, Malkhan Singh and Bachan Singh came along Wi.th
Mahipat Singh and others or that they were· armed with guns. Left
to ourselves,1 a different view of the evidence may not be ruled <l•Ut
but that is i:lot enough justification for interfering with the order of .
acquittal passed by the High Court. The finding of the High Court
in regard to the three res110nde,nts cannot be characterised as perve:rse
or against the weight of evidence. .We therefore confirm the orcler
of acquittal passtd by the High Court in their favour.
In the result, Criminal Appeal No. 10 of 1971 is partly allowed.
The acquittal of respondents 1 to 3 therein (Mahendra Singh, Malkhan
Singh and.Bachan Singh) is confirmed. Respondents 4 to 6 theri~in
(Niwedan Sjngh, Bhikam Singh and Nawab Singh) are sentenced to
death for the offence under · section 302 read with section 149, Penal
Code. The 'sentences imposed on them by the Trial Court for other
offences shall run concurrently.
Criminal Appeal No. II of 1971 ·is allowed to the extent that the
respondents therein, Karan Singh and Arjun Singh, are senteni::ed
to imprisonlnent for life for the offence under
section 302
read 'with section 149, Penal C',0de. The other sentences imposed on
them by the Trial Court shall run concurrently with the sentence of
life imprisonment.
V.P.S.
Appeals partly allow~'i.
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