# Sukha and others v. The State of Raj

- **Citation:** [1956] 1 S.C.R. 288
- **Court:** Supreme Court of India
- **Decided:** 1955-01-10
- **Case number:** Criminal Appeal No. 133 of 1955
- **Bench:** VIVIAN BosE, JAGANNADHADAS a.nd CHANDRASEKHARA AIYAR
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/sukha-and-others-v-the-state-of-raj-1309
- **Pages:** 15

## Headnote

[1956]
Unlawful Assembly11Common intention" and "Common object"
-Distinction-Duty of a Court of fact-Indian Penal Code (Act
XLV of 1860), ss. 8!,, 149.
Common intention reqnired by s. 34 of the Indian Penal Code
and common object set out under s. 149, though they sometimes
overlap, are used in different senses and should be kept distinct. In
a case under s. 149 there need not be a prior concert and meeting of
minds, it is enough that each has the same object in view and their
number is five or more and they a.ct a.s an assembly to achieve that
object.
When a crowd assembles and there is e.n uproar and people are
killed and injured, it is only natural for others to rush to the scene
with whatever arms they can snatch. Some may have an unlawful
motive but others may not, and in such circumstances it is impossible to say that they were all motivated by a common intention
with prior concert. What a court of fact should do in such a case is
to find from the evidence which of them individually had an unlaw·
ful object in view, or having originally a lawful object in view developed it later on into an unlawful one and if it finds that there were
five or more such persons who acted together there would be an un·
lawful assembly.
Consequently, in a case where there were circumsta.nces from
which the courts of fact could deduce that an unlawful object developed with more than fi"e to share it after the fighting started and
they were satisfied that it did, there was no reason why their con·
current decisions should be set aside.
This court will be slow to entertain a question of prejudice
when details are not furnished; also, the fact that the objection was
not taken at an early stage will be taken into account.

## Text

1956
Ajwil S
288
SUPREME COURT REPORTS
SUKHA AND OTHERS
ti.
THE STATE OF RAJASTHAN.
[VIVIAN BosE, JAGANNADHADAS a.nd
CHANDRASEKHARA AIYAR, JJ.]
[1956]
Unlawful Assembly11Common intention" and "Common object"
-Distinction-Duty of a Court of fact-Indian Penal Code (Act
XLV of 1860), ss. 8!,, 149.
Common intention reqnired by s. 34 of the Indian Penal Code
and common object set out under s. 149, though they sometimes
overlap, are used in different senses and should be kept distinct. In
a case under s. 149 there need not be a prior concert and meeting of
minds, it is enough that each has the same object in view and their
number is five or more and they a.ct a.s an assembly to achieve that
object.
When a crowd assembles and there is e.n uproar and people are
killed and injured, it is only natural for others to rush to the scene
with whatever arms they can snatch. Some may have an unlawful
motive but others may not, and in such circumstances it is impossible to say that they were all motivated by a common intention
with prior concert. What a court of fact should do in such a case is
to find from the evidence which of them individually had an unlaw·
ful object in view, or having originally a lawful object in view developed it later on into an unlawful one and if it finds that there were
five or more such persons who acted together there would be an un·
lawful assembly.
Consequently, in a case where there were circumsta.nces from
which the courts of fact could deduce that an unlawful object developed with more than fi"e to share it after the fighting started and
they were satisfied that it did, there was no reason why their con·
current decisions should be set aside.
This court will be slow to entertain a question of prejudice
when details are not furnished; also, the fact that the objection was
not taken at an early stage will be taken into account.
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 133 of 1955.
Appeal by special leave from the judgment and
order dated the 10th January 1955 of the High Court
of Judicature at Jodhpur in Criminal Appeals Nos.
57 & 83 of 1953 a.rising out of the judgment and
order dated the 26th May 1953 of the Court of
S.C.R.
SUPREME COURT REPORTS
289
Sessions Judge at Merta in Criminal Original Case
No. 1 of 1952.
Jai Gopal Sethi, K. R. Krishnaswami and K. R.
Ohaw1hry for the appellants.
Porus A. Mehta and P. G. Gokhale, for the respondent.
1956. April 5.
The Judgment of the Court was
delivered by
BosE J.-Four persons were killed about ll p.m.
on the night of the 21st July 1951 and a number of
others injured. This was said to be the result of a
riot that occurred in the village Dhankoli. Thirty
six persons were committed for trial. Of these, two
died during the course of the proceedings. The remainder were all charged under section 325/149 of
the Indian Penal Code and eleven were also charged
under section 302/149.
The learned Sessions Judge acquitted twenty five
of the charge under section 325/149 and convicted
nine. He acquitted all the eleven who were charged
under section 302/149 but convicted nine of them
under section 325/149.
The State did not appeal against the acquittals of
the twenty five under section 325/149 nor did it
appeal against the acquittals of two of the eleven
who were charged under section 302/149 but it
appealed against the acquittals of the remaining nine
who had been convicted under section 325/149. These
nine convicts also appealed. The High Court therefore had two appeals before it, one against the
acquittals of nine persons under section 302/149 and
the other by the same persons against their convictions under section 325/149.
The High Court dismissed the appeal of the convicts
and allowed that of the State. The convictions of
these nine persons were accordingly altered to ones
under section 302/149 of the Indian Penal Code and
the lesser sentence of transportation was given to
each.
It is admitted on both sides that there was bad
1956
Sukha and others
v.
The State of
Rajasthan
1956
Sukha and others
v.
The State of
Rajasthan
Bose}.
290
SUPREME COURT REPORTS
[1956)
blood in the village Dhankoli between a caste known
as Baories on one side and three other castes of the
village namely, Jats, Dhobis and Khaties on the
other.
The case for the prosecution is that this was due
to a dispute over a field that belonged to some of the
Jats. There were some court proceedings about the
field in which ParS!ia (one of the Baories who was
killed) had appeared against the Jats. The accused
Sukha, Gumana, Begla and Govinda were in particular interested in this field and so bore a grudge
against Parsia.
The defence also allege enmity. Their case is that
the enmity is due to the fact that the villagers decided
not to employ the Baories for watch and ward work
in the village as they suspected that the Baories were
responsible for certain thefts that had occurred there.
The other castes in the village therefore did this work
themselves by turns. This was resented by the Baories
and the allegation is that the Baories were responsible
for the fight and attacked some of the others in the
village and that that led to a fight; but none of the
appellants was concerned with it.
From this point it will be convenient to divide the
narrative into a series of numbered steps.
I. On the day in question, two of the Baories,
Chhotiya and Parsia, had been to. a neighbouring
village to bid at an auction where the field, which
according to the prosecution engendered the dispute,
was being sold.
They returned to their village about
11 p.m. and ran into the accused Sukha and Gumana
(both Jats). They were challenged· and when they
disclosed who they were, Sukha and Gumana cried
out "kill them. They had gone for the auction of the
field." On that Sukha fired a gun which he had with
him and hit Parsia on the legs. Parsia fell down and
Gumana hit him over the head with a sword. He also
hit Chhotiya over the head with a sword and Chhotiya
also fell down.
2.
Parsia and Chhotiya at once cried out for help
and their cries, coupled with the sound of the gun
fire, brought a number of persons to the scene. The
-'
S.C.R.
SUPREME COURT REPORTS
291
number varies widely. Chhotia (P.W. 8) says 30 to
35, Ruga (P.W. 1) says 50 or 60, Bedu (P.W. 2) puts
it at 30 or 40 and so does Lachhuri (P.W. 10), while
Ladia (P.W. 11) thinks there were as many as 100 to
150.
There are other estimates too, mostly in the
neighbourhood of 30 to 40, but the exact number
does not matter because it is evident that a crowd
assembled. Those who did the attacking are said to
have been about 30 or 40 but it is clearly proved that
several Baories were there and that some of them
were assaulted.
The point of stressing these facts is to bring out
the fact that most of the persons there did not assemble for an unlawful purpose and so did not form
an unlawful assembly. The problem is to" sort out
those who formed an unlawful assembly from those
who did not. Mr. Sethi argued that there is no evidence to support a finding that there was an unlawful assembly because it is impossible to determine
who came to attack and who did not. But we will
deal with this later. For the present, we will conti~
nue our narrative outlining the prosecution case.
3. After the gun was fired and Parsia and Chhotiya
struck down, a large number of persons rushed to the
scene and, among them, some 30 or 40 were armed
with various kinds of weapons. Of these, Kamla,
Balia, Todia and Bhawana (all Jats) had pharsies,
Gumana, GovindaandJodhiya (alsoJats) had swords
and the rest (Jats, Dhobis and Khaties) had lathis.
These persons also attacked Chhotiya and Parsia.
4.
The cries of Chhotiya and Parsia attracted
Mana, Govinda, Pemla, Ram buxa and Gangli and
some others. These persons are Baories. This crowd
of 30 or 40 turned on Mana and Govinda and attacked
them. Sukha then fired his gun a second time and
hit Mana on his left hand.
5. In the meanwhile, Ganesh and his wife Seruri
(Baories) arrived and said "don't beat, don't beat".
Sukha and Gumana said that they should also be
beaten and thereupon these 30 or 40 persons .started
to beat them too and they fell down.
6.
After this, Parsia's wife Lachhuri came there
1956
Sukh a and others
v.
The State of
Rajasthan
Bose].
1946
Sukha and othef's
v.
The State of
Rajaslhan
Bose J.
292
SUPREME COURT REPORTS
[1956)
and some 10 or 11 persons out of the original 30 or40
started to chase her. But she ran away and managed
to escape with only a slight beating.
7.
While this was happening, the five Baories who
had been felled to the ground (Parsia, Ganesh, Mana,
Govinda and Seruri) started to cry out.
The ten or
eleven who had chased Lachhuri came back and on
hearing the cries of these five on the ground, Sukha and
Gumana said that they were crying and should be
killed outright. On that these eleven persons divided
into three groups and attacked the five on the ground
as follows:
·
Parsia was beaten by Sukha (with a pharsi),
Jeewana (dangri) and Chokla (dangri).
Mana and Govinda were beaten by Gumana (sword),
Balia (pharsi) and Jankiya and Naraina (lathis).
Ganesh was beaten by Bhawana (dangri), Govinda.
(sword), Kumla (pha.rsi) and Begla. (dangri).
All four died on the spot.
The accused were charged as follows.
One group
consisting of 25 persons were charged under section
325/149 of the Indian Penal Code for intentionally
beating, along with the other accused,
1.
Chhotiya.
2. Seruri
3. Parsia
4.
Mana
5. Govinda and
6.
Ganesh.
At a later stage, the following sentence was added to
the charge:
"which you inflicted as a member of an unlawful
assembly in prosecution of its common intention".
These twenty five were acquitted and we a.re not concerned with them except to note that they were not
concerned with that part of the occurrence which we
have set out as steps 6 and 7 above.
The charge against the remaining eleven can be
divided into two parts. Under the first, each, except
Sukha, is charged with beating the Baories Parsia,
Mana, Govinda, Ganesh, Chhotiya, Seruri, etc. "a.long
with other accused".
Five of the eleven are said to
S.C.R.
SUPREME COURT REPORTS
293
have beaten them with "swords and lathis"; another
five "with lathis, etc." while the eleventh, Sukha, is
said to have fired at Parsia and Mana "as a result of
which they fell down". Then each charge continues-
" and when all had fallen down as a result of
these injuries".
After that the charges divide off into three groups:
One group charges (1) Gumana, (2) Naraina, (3) Balia
and (4) Jankiya with beating Govinda and Mana,
"who were groaning, with lathis with intent to kill
them till they were actually killed". The next group
charges (1) Jeewana, (2) Sukha and (3) Chokhla with
hitting Parsia with lathi blows "with intent to murder
him till he died". The third group charges (1) Begla,
(2) Govinda, (3) Kumla and (4) Bhawana with assaulting Ganesh with lathis with intent to murder
till he died.
The following sentence was also added in the end
of each of these charges:
"And you did this as a member of an unlawful
assembly in prosecution of its common intention".
There has been some confusion in both the Sessions
Court and the High Court between "common intention" and "common object". It is true the two sometimes overlap but they are used in different senses in
law and should be kept distinct. In a case of unlawful assembly or riot we are concerned with a common
object. However, we are satisfied that that has not
caused any prejudice.
But the reason why we have
set out these charges at some length is because counsel for the appellants argued that the prosecution
case is that there were two separate assemblies, one
of twenty five persons to beat six specific persons and
another of eleven to kill them in three groups.
He
argued that the twenty five who constituted the first
assembly have all been acquitted; that the only
material from which an unlawful assembly can be
inferred in the other case is the instigation of Sukha
and Gumana for a second time after they had returned
from chasing Lachhuri. That story, he said, has been
disbelieved, so all must be acquitted.
It will be necessary at this stage to set out the
1956
Sukha and othef's
v.
The State of
Rajasthan
Bose/.
294
SUPREME COURT REPORTS
[1956]
1956
findings of the two lower courts.
The learned Ses-
-
sions Judge starts by rejecting the evidence of Ruga
Sukhaandothers (P.W. 1), Bodu (P.W. 2) and Bhagwatia (P.W. 3) on
The s~:te of
the question of identification of any of the accused
Rajasthan
and the evidence of Arjun (P.W. 4) about the conspiracy to beat up the Baories. But he finds that the
Bose J.
evidence of the Baori witnesses, Chhotiya (P.W. 8),
Lachhuri (P.W. 10), Ladia (P.W. 11), Seruri (P.W.
12), Gangli (P.W. 13) and Pemla (P.W. 14) is consistent "so far as these 11 accused are concerned regarding their beating 4 persons to death and causing injuries to
Lachhuri, Ganesh's wife, Seruri and
Cbbotiya". Later, be states-"From the evidence of
these Baori witnesses,. .............. .it is found that these
eleven accused were involved in the beating of the
injured persons. Whether they formed part of a bigger
assembly is not now material because I have already
discussed the cases of other accused and given them
benefit of doubt. These eleven accused even amongst
themselves being more than five in number could be
regarded as members of an unlawful assembly".
But the learned Judge only accepted this story in
part. HebelievedCbbotiya (P.W. 8), Seruri (P.W.
12), Gangli (P.W. 13) and Pemla (P.W. 14) in so far
as they stated that Sukba bad a gun and that Sukba
used it against Parsia and Mana, but be did not accept the evidence of Chbotiya (P.W. 8) in so far as
he said that Gumana hit Chbotiya with a sword. He
also rejected the prosecution version that the incidents occurred in two parts, first with a bigger
assembly that beat all the accused and next with a
smaller one that ran after Lachhuri and beat her and
then returned to beat the others to death at the instigat.ion of Sukha and Gumana.
On this part of the
case, the learned Sessions Judge found that
"whatever beating was done was done immediately after the scuffle between Cbhotiya and Parsia
and Sukha and Gumana and Gumana and Naraina,
and those accused who had arrived on the spot.
Nobody instigated anybody". (Para 103).
It was argued on behalf of the defence that the
learned Sessions Judge discarded the evidence about
-
-
S.C.R.
SUPREME COURT REPORTS
295
instigation in toto. Counsel for the State, however,
contended that this passage refers to the second
instigation which is said to have been given after the
eleven had chased and beaten Lachhuri and returned
to finish off the others who were lying on the ground.
We think that is right.
In paragraph 101 of his judgment the learned Sessions Judge set out the fact that the prosecution
witnesses divide the incidents into two parts: one in
which a larger assembly beat all the injured persons
and the other in which eleven killed the four deceased
persons at the instigation of Sukha and Gumana.
In paragraph 102 he set out reasons why he was
not able to believe this story. The first was because
"Ladia (P.W. 11) did not state in his statement
before the police that after beating Lachhuri, when
ten or eleven persons had returned then at the instigation of Sukha and Gumana the injured were again
beaten to death".
Then, after setting out four more rea::;ons, the learned
Judge reached the conclusion just enumerated in
paragraph 103.
In paragraph 117 he said-
"Leaving Begla and Govinda, I am fully convinced that Sukha, Gumana, Naraina, Kumla, Balia,
Jeewana, Chokhla, Bhawana Khati and Jankiya did
commit rioting with the common object of beating
the Baories".
In paragraph 118 he said-
"I am not convinced that the intention of all
these accused was to murder the whole lot of
Baories ............ "
In para 119-"The accused did give sound beating
to the injured".
He concluded that no common object to kill could
be deduced but held that a common object to beat
was olear.
As he was unable to determine which
accused gave the fatal blows he convicted all under
section 302 read with section 149 of the Indian Penal
Code.
We think it is clear from this judgment, read as a
whole, that the learned Sessions Judge disbelieved
30
1956
Sukha and others
v.
The State of
Rajasthat1
Bose j.
1956
Sukha and others
v.
The State of
l?.ajastliau
Bose J,
296
SUPREME COURT REPORTS
[1956)
the story of instigation at any stage because if he had
believed even the first instigation, a common object
to kill would have emerged.
We are unfortunately not able to obtain much
assi.stance from the judgment of the learned High
Court Judges. They have not analysed the evidence
and have not reached clear findings about a common
object due in some measure to the fact that they d~
not appear to have appreciated the difference between a common object and a common intention.
They hold that six witnesses can be relied on to
the extent that "the villagers were armed with guns,
swords, farsies and lathis". They do not believe all
that these witnesses say because they hold
"Though, therefore, we do not believe that these
eleven persons deliberately murdered the four injured
Baories who were lying there saying that they should
be killed, there is no doubt in our minds that these
eleven persons.who have all been mentioned by these
six witnesses were certainly seen taking more active
part in this incident".
Then they hold-
.
"We are, therefore, satisfied on the statements
of these witnesses that the incident took place in the
main as stated by them and that the prosecution has
given the right version of the affair".
Next, they hold that the fact that a large number
of villagers, including the nine appellants, turned up
armed with various weapons immediately they heard
the quarrel between Chhotiya and Parsia on the one
aide and Gumana on the other
"shows that there must have been some consultation from before and that these persons arrived in
prosecution of the common ubject ............ ".
And they add this reason:
"There is also the evidence o.f the prosecution
witnesses that as the Baories came, some one or the
other of these accused incited the rest of the villagers
to beat up the Baories".
From this they conclude that there was an unlawful
assembly with the common object of beating up the
Baories.
S.C.R.
SUPREME COURT REPORTS
297
This is very unsatisfactory. The learned Judges
were dealing with an appeal against an acquittal and
though they have allowed the appeal they liave not
been specific about which part of the evidence they
rely on in support of their findings, nor do their conclusions follow logically from the premises on which
they are based.
Take, for example, the finding about prior consultation. In the first place, no prior consultation is
required when a common object is in question. The
essence of the distinction between common object and
common intention lies there. In the next place, the
six witnesses, who are relied on, say that a crowd of
30 or 40 persons assembled. Among that crowd were
Baories because three Baories (other than Parsia and
Chhotiya) were killed and others injured. It is also
evident that some of these Baories must have had
some sort of weapons because three of the accused
had slight injuries on their p~rson and one a fracture. ·
The evidence discloses that there had been thefts in
the village. The uproar occurred at 11 in the night.
In those circumstances, it would be natural for the
villagers to rush to the scene and arm themselves
with whatever came to hand. Some may have been
motivated by an unlawful motive but many would
not, and to deduce a common intention with prior
concert in such circumstances is impossible. A common object is different and courts of fa.ct are entitled
to conclude on the evidence that has been accepted
that some of those who rushed to the scene went there
with the object of beating up persons whom they
thought to be thieves and not merely to apprehend
them or defend their properties; in other words, that
some of those persons individually had an unlawful
object in view. If each had the same object, then
their 9bject would be common and if there were five
or more with this object, then they would form an unlawful assembly without any prior concert among
themselves.
Next, take the High Court's finding about incitement. They have rejected the version given by the
prosecution wjtnesses because they hold that the
1956
Sukha and oti1ers
v.
The State of•
Rajasthan
Bose}.
1956
Sukha and others
••
The State of
Rajasthan
Bo1eJ.
298
SUPREME COURT REPORTS
[1956]
story about the second beating is an improvement
and also because they disbelieve the evidence that indicates that these eleven persons
deliberately
murdered the four injured Baories.
But the only evidence about incitement is that
Sukha and Gumana called on the-others to kill Barsia,
and later to kill the others. The incitement was quite
clearly to kill and not merely to beat. If this is rejected, then there is no evidence about incitement, so
we are left in the dark to know what the learned
Judges based their conclusion on. That has left us
with the task of finding whether there is, or could be,
any proper basis for these convictions.
Now, as we understand the learned Sessions Judge,
he has believed the first part of the story which we
have set out as step No. 1 except the portion that
speaks about an incitement to kill. He finds that
there was the meeting between Sukha· and Gumana
· on the one side and Parsi a and Chhotiya on the other.
He says-
"lt can safely be deduced from the incidents as
related by th!l witnesses in this case that in the
beginning the fighting was between a couple of persons
only and on hearing their cries their relatives, friends
and relations and other villagers reached the spot and
some of the villagers did beat the Baories".
Pausing there, it is evident that there was no unlawful assembly when the beating started; nor can it be
deduced that all the persons who rushed to the scene,
whether the number was 30 or 150, formed an unlawful assembly. We therefore have to scan the evidence
carefully to see what happened after that. The finding is that the eleven accused who were charged for the
murder were all involved in the beating of the injured
persons. That satisfies one of the ingredients of rioting, namely the presence of five or more person.a. But
that of course is not enough. There must, in addition,
be an "assembly" and that assembly must have a
"common object" and the object must be "unlawful".
But a common object is different from a common
intention in that it does not require prior concert and
S.C.R.
SUPREME COURT REPORTS
299
a common meeting of minds before the attack, and an
unlawful object can develop after the people get
there. It is not for us to re-assess the evidence in
special leave. All we can say is tha.t there are circumstances from which courts of fact could deduce
that an unlawful object developed with more than five
to share it once the marpit had started; and as two
courts of fact a.re satisfied that it did, there is no reason for us to interfere. Persons who had come there
quite lawfully, in the first instance, thinking there
were thieves could well have developed an intention
to beat up the "thieves" instead of helping to apprehend them or defend their properties; and if five or
more shared the object and joined in the beating,
then the object of each would become the common
object.
This is not to say that all those present were members of that assembly. The presumption of innocence
would preclude such a conclusion. Those who rushed
to the scene in the circumstances disclosed must be
presumed to have gone there for a lawful purpose
even if they were armed. The apprehension of marauders who prowl the town at night and the defence
of person and property are lawful objects. But when
that object is exceeded and persons begin to beat up
the suspects the a.ct of beating becomes unlawful, for
priva.t.e persons are no more entitled to beat and illtrea.t thieves than a.re the police, especially at a time
when there is nothing beyond suspicion against them.
But if five or more exceed the original lawful object
and ea.ch has the same unlawful intention in mind
and they act together and join in the beating, then they
in themselves form an unlawful assembly. There is
no difference in principle between this and a case in
which the original object was unlawful. The only
difference is that a case like this is more difficult to
establish and must be scrutinised with greater care.
But that scrutiny is here and we are satisfied that
there is evidence in this case on which courts of fact
could base the conclusion that they have reached.
Now, did these eleven persons constitute an assembly or were they there individually without any
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Rajastlian
Bose J,
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common factor to link them together? That, we think,
is easily answered. It is clear that each (barring
Sukha and Gumana who were already there) assembled at the spot because of the cries of Parsia and
Chhotiya and because of the noise of the fight. That
imports a common factor into their meeting and links
them together as an assembly. Their object in assembling may have been innocent but the fact that
a common factor like this induced them to come together constitutes them into an "assembly" though
not, on that evidence alone, into an unlawful assembly.
We next have to see whether any of them had an
unlawful object in view. The object of Sukha and
Gumana was clearly unlawful. Now the evidence
which has been believed shows that the other nine
actually joined in the beating and that they did this·
after Sukha had fired his gun at Parsia and Parsia
had fallen to the ground. It also shows that these
others turned on Parsia's relations and friends when
they came to their support. Therefore, whatever the
original object of each may have been, it achieved
a unity of purpose the moment the others joined in
and continued to assist Sukha and Gumana and helped
them to beat up the other Baories who came to
Parsia's help. It is not a case of stray sporadic acts
but indicates a certain continuity of purpose, each
striving to achieve the same end, namely either to
help Sukha and Gumana in beating up Parsia and
Chhotiya and those who came to help them or to join
in the beating for ends of their own. But the commonness of purpose is an inference of fact which
courts of fact would be entitled to make. It does not
matter whether the others joined in because of an
initial instigation or whether, seeing the assault in
progress, they joined in on their own account, because
so long as each had the object of beating up Parsia
and Chhotiya and those who came to their assistance,
that would make their object common.
The distinction between the common intention required by section 34 of the Indian Penal Code and
the common object set out in section 149 lies just
S.C.R.
SUPREME COURT REPORTS
301
there. In a case under section 149 there need not be
a prior meeting of minds. It is enough that each
has the same object in view and that their number is
five or more and that they act as an assembly to
achieve that object.
All these features are to be
found in that part of the evidence which has been
believed. Therefore, on these findings which the
courts of fact are entitled to reach, the object of the
assembly was unlawful, but up to this point the
highest common denominator was merely to beat and
not to kill. Up to that point, the convictions of the
learned Sessions Judge under section 325/149, Indian
Penal Code, are unassailable.
The next question is
whether, that being the case, the convictions by the
High Court under section 302/149 can be upheld.
Neither the Sessions Judge nor the High Court believe that there was any common intention to kill,
therefore the convictions for the more serious offence
can only be sustained under section 149 if it can be
shown (1) that an actual killing of some of the persons
attacked was likely to result from the beating which
formed the common object and (2) that each person
so convicted knew that that might be a likely result.
Now so far as Sukha and Gumana are concerned,
there can be no doubt. They started the fight with
deadly weapons. Sukha fired at least twice and hit
two persons. He himself may not have had an intention to kill and indeed the fact that the wounds
are on non-vital parts must be used as a factor in his
favour, but any person who carries a fire arm at that
hour of the night and uses it and then continues a
fight after an excited crowd has assembled and when
at least nine of them rush in to join in the beating
after his first shot must know either that somebody is
likely to deal a fatal blow or at least that the cumulative effect of blows inflicted by a number of persons
armed with la this is likely to cause death from shock.
Riots of this kind are common and death frequently
results, therefore, not only was a killing a likely consequence of such an assault conducted in this fashion
but Sukha and Gumana as men of ordinary intelligence must have known that.
1956
Sukha and others
v.
The State of
Rajasthau
BoseJ,
1956
Stikha and others
v.
The State of
Rajasthan
Bose J.
302
SUPREME COURT REPORTS
(1956]
Much the same considerations apply in the case of
the other appellants. They rushed in to hit persons
who had already been fired on and who had been
felled to the ground.
They were in the midst of a
crowd which could hardly have been calm and impassive and they joined in with several others to beat
them up. Any man of reasonable intelligence would
have known that somebody would be likely to be
killed in a melee like that.
Therefore, the requisite
knowledge can be imputed to them also.
Two questions remain.
One was directed against
the reliability of that part of the evidence that has
been believed.
The argument, for all its repetition,
length and eloquence, was the hackneyed one that
when one part of a witness' evidence is disbelieved,
it is unsafe to act on the rest of his testimony. The
answer is equally hackneyed, namely that judges of
fact have the right to do this and that this is not a
court of appeal when it acts under article 136.
The
findings about this are concurrent, so, following our
usual practice, we decline to review the evidence.
The other is that the absence of this in the charge
occasioned prejudice. We have recently decided that
we will be slow to entertain question of prejudice
when details are not furnished; also the fact that the
objection is not taken at an early stage will be taken
into account. There is not a hint of prejudice in the
petition filed by the appellants here in the High Court
for leave to appeal to this Court; nor was this considered a ground for complaint in the very lengthy
and argumentative petition for special leave filed in
this Court. The only complaint about prejudice was on
the score that there was no proper examination under
section 342 of the Criminal Procedure Code. We decline
to allow this matter to be raised.
The appeal fails and is dismissed.
•
I