Case Brief: Mizaji And Ors. Vs. The State of U.P

IN THE SUPREME COURT OF INDIA

DECIDED ON: 18 December 1958.

APPELLANT: Mizaji And Ors.
vs.
RESPONDENT: State of Uttar Pradesh

Facts of the case

The incident which gave rise to this case took place on a field called Sukhna field which was recorded in papers in possession of Banawari as tenant-in-chief. In 1952, this field was shown as being under the cultivation of Rameshwar, the deceased, and four other persons namely Ram Sarup (his uncle), Jailal (his brother), Sita Ram and Saddon. The record did not mention the title under which these persons were in possession of land. On April 18, 1957, Banwari sold the field to Tej Singh (One of the Appellants in this case) and four other persons namely Mizaji (son of Tej Singh), Subedar (his nephew), Machal (his cousin) and Maiku (his servant).

At about sunrise on July 27, 1957, all five appellants came armed to the field. Mizaji carried a pistol in his dhoti, Tej Singh carried a spear and the rest carried lathis, a plough, and plank known as patela, and bullocks were also brought. The said field was divided into three parts, one where sugarcane was grown, second where jowar had been sown and the rest which was uncultivated. While Tej Singh was keeping a watch, Maiku ploughed and overturned the sown Jowar, Mizaji, Subedar, Machal, and Maiku were cutting sugarcane crops Bateshwar (Prosecution witness-7) saw the whole scene and informed Rameshwar about the same and then Ram Sarup, accompanied by Rameshwar, Jailal and Israel reached the field but unarmed. They inquired Tej Singh as to why appellants were damaging the field and the appellants replied that the field is in their possession and they can do whatever they want, this led to an altercation between both parties. Seeing this altercation, Mizaji, Subedar, Machal and Maiku gathered on the spot and upon the instigation of Tej Singh, Mizaji took out the pistol and fired. The bullet hit Rameshwar, who fell down and died half an hour later. The accused fled away from the place.

Ram Sarup, Jailal, and Israel filed a First Information Report at Nawabganj police station at about 7-30 a.m. and named all the five accused. Police couldn’t find the accused and the proceeding under section 87 and 88 of the Code of Criminal Procedure were issued. But before any process could be started Subedar, Tej Singh and Machal and Maiku appeared in court on August 3, 1957, and Mizaji on August 14, 1957, and they were taken into custody.

Procedural History

The case was first decided by the Session court, where the learned judge of the session court awarded the death penalty to Mizaji and sentence of life imprisonment to the rest of the appellants. An appeal was made to the Allahabad High Court and High Court affirmed the decision of the lower court. Further, the aggrieved appealed to the Supreme Court and the Apex Court also affirmed and upheld the decision of both the lower courts.

Issues Raised

Issues raised before the Court were mixed, the question of law and question of fact. Question of law requiring the correct interpretation of both the parts of section 149 of IPC and the question of fact required checking if the present case falls under the said interpretation. The issues were:-

• What was the common object of Unlawful Assembly?
• Whether the offence of murder was committed in prosecution of the common object?
• Whether members of the unlawful assembly knew that murder was likely to be committed in prosecution of the common object?

Cases relied upon by the Parties

• The counsel of the appellants relied on Queen v. Sabid Ali[1] and contented that section 149 was not applicable in the instant case. The facts of Sabid Ali’s case were similar to the instant case where there was an unlawful assembly that went to take forcible possession of the land and the offence of murder was committed in the process. The facts of the incident suggested that there was an unexpected opposition by one member of the party of the complainants and finding that unlawful assembly was 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. The view of the majority was 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. If events were of sudden origin, as the majority of the learned Judges held them to be in this case, then the responsibility was entirely personal. One of the judges held that in the circumstances of this case the assembly did not intend to commit nor knew it likely that murder would be committed. The appellants’ counsel relying upon this judgment contended that the murder or likeliness of murder was not the common object of the unlawful assembly.
• Counsel for the appellants also relied upon Chikkarange Gowde v. State of Mysore [2]. In this case, there were special circumstances that were sufficient to dispose of it. The charge was a composite one mixing up the common intention and the common object under s. 34 and 149, Indian Penal Code and the 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 of the High Court there was no liability under s.34 and further, the charge did not give proper notice nor a reasonable opportunity to those accused to meet that charge. On these findings, it was held that conviction under s.302 read with s.149 was not justified in law nor a conviction under s. 34.

Laws Emphasized

• Section 149 of IPC[3] talks about the prosecution of the common object of unlawful assembly:
  Every member of unlawful assembly guilty of offence commit­ted in prosecution of common object.—If an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly is guilty of that offence.
• Section 302 of IPC Punishment for murder.—Whoever commits murder shall be punished with death, or imprisonment for life, and shall also be liable to fine.

Analysis of the Case

Whether murder was committed in prosecution of a common object or the members of the assembly knew that murder is likely to be committed?

The Supreme Court clarified on both the parts of section 149 [4]. It said that the first part of the section means that the offence committed in the prosecution of the common object must be one that is committed with a view to accomplish the common object. The sense of a meeting of the members of the unlawful assembly is not necessary and if it is adopted and shared by all members, then it can fall under this part. For the case to 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 section 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. If an assembly of persons goes armed to take forcible possession of the land, it would be right to conclude that they have the knowledge that murder is likely to be committed if the circumstances as to the weapons carried and other conduct of the members of the unlawful assembly clearly point to such knowledge on the part of them all.

The Apex Court asserted the findings of the High Court, where it found that the appellants were divided into three parties, Maiku in the Jowar field, Mizaji, Subedar, and Machal in the sugarcane field and Tej Singh keeping a watch, but as soon as the complainants inquired Tej Singh all three parties gathered around him and asked the complainants to go away or otherwise, they would be killed. When the complainants refused to go, Tej Singh asked Mizaji to fire at them and Mizaji fired the pistol as a result of which Rameshwar was injured, fell down, and died half an hour later. It was contended on behalf of appellants that they had divided themselves into three parts and only Mizaji used his pistol and the other appellants did not use any weapon, therefore, the murder cannot be said to be committed in pursuance of the common object.

Whether murder was committed in prosecution of a common object or the members of the assembly knew that murder is likely to be committed can be ascertained by the extent to which the members of the unlawful assembly were prepared to go, indicated by the weapons carried by them and by their conduct, and the language they used at that time towards the deceased party.Tej Singh was armed with a spear, his son Mizaji was armed with a pistol, and others were carrying lathis, they all collected at the place where the complainants objected to Tej Singh and threatened the complainants to go away otherwise they would be finished. From this conduct, it appeared 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 section 149, Indian Penal Code and they are all guilty of murder.

Reasoning on Contentions advanced by counsels

• It was also 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 the land which the appellants believed was theirs by right. The court said that the proceedings about the land were already going on in the Revenue Department and the complainants were opposing the claim of the appellants, and then when people go armed with lethal weapons to take possession of the land 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.
• It was also 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. The court said that Mizaji carried the pistol from his house and was a member of the assembly which wanted to take forcible possession of the land which was in possession of the other. 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 it. Merely because a son uses a pistol and causes the death of another at the instance of his father is no mitigating circumstance which the courts would take into consideration.
• While the prosecution relied upon the evidence eyewitnesses and Bateshwar, the defence denied all these evidence and asserted Rameshar was killed in a dacoity which took place at the house of Ram Swarup. 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 an 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 the prosecution of the common object of that assembly that Mizaji 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.

Judgement

The Supreme Court upheld the judgment of the Session Court and the High Court. It was held that the sentence of death on Mizaji is rightly imposed. Other appellants being equally guilty under section 149, Indian Penal Code, have been rightly sentenced to imprisonment for life. They were all convicted under section 302 read with section 149 of the Indian Penal Code. They were convicted of the offense of rioting because Tej Singh and Mizaji were armed with a spear and a pistol respectively, they were convicted under section 148 of the Indian Penal Code and sentenced to three years’ rigorous imprisonment and the rest who were armed with lathis were convicted under section 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”.

This Case Brief is prepared by Astha Jain, student at National Law Institute University, Bhopal