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Picharu Bhati And Others v. State Of Orissa .

Orissa High Court
Dec 22, 1962
Judgment
Subsequent
References
CaseIQ
Case Information
CITATION CODES
citation codes
CASE NO.

Criminal Appeal No. 38 of 1962 with Govt. Appeal No. 20 of 1962, from order of S.J Bolangir-Kalahandi

JUDGES

R.K Das

G.K Misra, JJ.

ACTS

Section 324, I.P.C 3nd

Section 148, I.P.C

Section 325, I.P.C

Section 323, I.P.C

Section 324, I.P.C

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Structured Summary of the Opinion (Misra, J.)

Factual and Procedural Background

This opinion addresses criminal appeals arising from a violent incident on or about 12 July 1960 at or near the embankment (Adi) of an irrigating tank (the "Kata") between two local groups in Padampur. Appellants 1 to 8 in Criminal Appeal No. 38 of 1962 correspond to respondent Nos. 1 to 8 in Government Appeal No. 20 of 1962. They were convicted under Section 148, Indian Penal Code (I.P.C.) and each received one year rigorous imprisonment (R.I.). Additionally, several accused received further convictions under various sections (notably Section 324, Section 304 Part II, Section 325, Section 323) with specified sentences; the sentences were ordered to run concurrently. The accused had been acquitted by the trial court of charges under Sections 302 and 302/149 I.P.C.; the Government appealed to set aside the acquittal and obtain convictions under those sections. The prosecution's case described a pre-existing dispute over rights and use of the Kata and surrounding lands (including plot No. 1107 known as Kadalimunda Bhag), allegations that accused persons came armed and attacked a party of labourers (Gandas) and others working on the land, and the deaths of three persons (Subanath, Hagru, and Guman) following the incident. The defence presented a different version portraying the complainant's party as armed aggressors who reopened an embankment (Adi/Ghai), and asserting that some accused were not present or were merely spectators.

Legal Issues Presented

  1. Whether the party of P.W. 1 (the complainant) constituted an unlawful assembly.
  2. Whether accused Nos. 1, 2 and 3 are liable to be convicted for the murders of the deceased under Section 302 I.P.C.
  3. Whether the remaining accused (particularly 4 to 8) are liable to be convicted under Section 302 read with Section 149 I.P.C. (i.e., for acts committed in prosecution of the common object of an unlawful assembly).
  4. Whether accused 7 and 8 (who allegedly committed no overt act) could be held to be members of the unlawful assembly despite the absence of proved overt acts.
  5. Procedural/penal issue noted in the record: that imposition of fine is compulsory under Section 325 I.P.C. yet no fine had been imposed on accused No. 3 (an issue recorded as a factual point in the record).

Arguments of the Parties

Prosecution's Case

  • The accused (a large mob led by accused Nos. 1–4) came armed with lethal and dangerous weapons to the Adi/Kata and assaulted an unarmed party engaged in weeding and preparing the land for transplantation.
  • The accused intended to prevent P.W. 1's party from cutting the embankment (Ghai) and, by means of criminal force and show of force, attacked them; three persons died as a result of those assaults.
  • The conduct, nature of arms used and behaviour of the accused established that they formed an unlawful assembly with a common object that, if necessary, could involve murder — hence liability under Sections 302 and 302/149 I.P.C.

Defence's Case

  • The defence admitted an occurrence took place on 12 July 1960 but stated P.W. 1's party had surreptitiously cut the Adi and opened a large gap; villagers (including accused) had filled it and the complainant reopened it again with an armed party.
  • The defence contended that P.W. 1's party included armed persons (Rapha and a gun) and were the aggressors; there was stone-throwing from both sides and the accused were not the aggressors.
  • Several accused (4 to 8) denied presence at the place of occurrence; for accused 7 and 8 it was argued that no overt act was proved and therefore they could not properly be treated as members of an unlawful assembly.
  • Alternate contention: some persons might have been innocent spectators who got mixed up in a large melee rather than active members of an unlawful assembly.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
ILR (1952) Cut 219, Pranbandhu v. The State Rejects the strict distinction between maintaining a right and enforcing a right as a defence where criminal force is used; the "usual argument" based on that distinction no longer holds. The court relied on this decision to reject the accused-parties' contention that they were merely enforcing a right and thereby avoid criminal liability; it supported the conclusion that the accused formed an unlawful assembly when they used criminal force.
Himirika Lokanath v. State, 1962 Cut LT 435 (also reported 1964 (1) Cri LJ 114) Where several persons assault a deceased, the "common object" can be inferred from the nature of the assembly, the arms used and the behaviour of the assembly at or before the scene; the common object is an inference of fact. The court applied this principle to infer a common object of the unlawful assembly from the hostile history between the parties, the arms carried, and the behaviour on reaching the spot, supporting convictions under Section 302/149 for persons who took part in the assault.
AIR 1959 SC 572, Mizaji v. State of U.P. Formulates a test for common object: whether members of the unlawful assembly intended to attain the common object by means of murder if necessary. The court used this test to hold that the unlawful assembly's common object included murder if necessary, and therefore convicted members accordingly (accused 1, 2 and 3 under Section 302; others under Section 302/149).
AIR 1956 SC 181, Baladin & Others v. State of U.P. Explains that commission of an overt act by a specific accused is evidence that he was a member of an unlawful assembly, but the converse (that absence of proved overt act means non-membership) does not follow; careful scrutiny is required in large melees. The court relied on this clarification to reject the submission that accused 7 and 8 could not be members simply because no particular overt act was proved; eyewitness implication and possession of lathis supported their conviction as members of the unlawful assembly.

Court's Reasoning and Analysis

The court proceeded in a step-by-step factual and legal analysis grounded in the trial record and applicable authorities:

  1. Factual locus and parties: The incident occurred at or near the southern end of the Adi of the Kata, in close proximity to plot No. 1107 (Kadalimunda Bhag). The court accepted the finding that the deceased and the Gandas were at or near the Ghai/Adi and that the complainant's party had gone unarmed to weed and prepare the land.
  2. Unlawful assembly analysis: The court examined whether the complainant's party constituted an unlawful assembly. Because P.W. 1's party were unarmed and had not used criminal force or show of force to enforce any right, the court held they did not constitute an unlawful assembly.
  3. Aggression and relative positions: The accused, in contrast, came in a large body from their village armed with dangerous weapons and sought to prevent P.W. 1's party from cutting the embankment. Given that the complainant's group were unarmed and already present on the land, the court concluded the accused were the aggressors.
  4. Application of precedent on enforcing a right: Citing Pranbandhu, the court rejected the defence that the accused were merely enforcing a supposed right; the distinction between maintaining and enforcing a right did not absolve the accused when they used criminal force.
  5. Inference of common object: Relying on Himirika Lokanath and Mizaji, the court held that the common object of the unlawful assembly can be inferred from the nature of the assembly, the weapons and behaviour. The prior inimical relationship, the arms carried, and the conduct at the scene supported an inference that the common object included murder, if necessary, to prevent the complainant's party from opening the Adi.
  6. Individual liability and overt acts: Addressing the defence that some accused (7 and 8) committed no overt act, the court relied on Baladin to observe that absence of proved overt act does not automatically establish non-membership. Given eyewitness implicating and possession of lathis, accused 7 and 8 were found to be members and not merely innocent spectators.
  7. Conclusion from evidence: From the totality of circumstances the court concluded that accused 1, 2 and 3 committed the killings in prosecution of the common object (liability under Section 302), and that the remaining five accused were liable under Section 302 read with Section 149 I.P.C.

Holding and Implications

Core Rulings:

  • Government Appeal: ALLOWED. (The court states "Govt appeal allowed." at the conclusion.)
  • Criminal Appeal: Allowed in part. (The court states "Criminal appeal allowed in part.")
  • The court held, on the reasoning recorded, that accused Nos. 1, 2 and 3 are each liable to be convicted under Section 302 I.P.C., and that the other five accused examined in the opinion are each liable to be convicted under Section 302 read with Section 149 I.P.C.

Consequences and Implications:

  • Direct effect on the parties: The appellate court allowed the Government appeal and modified the legal characterisation of the accused's conduct by holding criminal liability under Section 302 (for accused 1–3) and under Section 302/149 (for others), as set out in the reasoning. The opinion also records concurrent sentences for the previously imposed convictions under Sections 148, 323, 324, 325, and 304 (as appropriate to certain accused) but does not in the extracted text specify fresh sentences for the convictions under Section 302/149 within this excerpt.
  • On precedent and legal principle: The court applied and explained established principles concerning unlawful assembly, common object and the evidential role of overt acts, relying on the cited authorities; the opinion does not purport to lay down a new legal principle beyond application of existing precedents referenced in the text.
  • On sentencing technicality noted: The record points out that under Section 325 I.P.C. imposition of a fine is compulsory, but no fine had been imposed on accused No. 3; the excerpt records this as a factual observation but does not set out a remedial sentence order within the portion provided.

Note: The summary above is confined strictly to matters stated in the provided opinion excerpt. Where the opinion excerpt did not state further particulars (for example, specific appellate sentences imposed for convictions under Section 302/149 within this extract), no additional facts or outcomes have been inferred or added.

Show all summary ...

Misra, J.:— Appellants 1 to 8 in Criminal Appeal No. 38 of 1962 are respectively respondent Nos. 1 to 8 in Government appeal No. 20 of 1962. They have been convicted under Section 148, I.P.C and each has been sentenced to R.I for one year thereunder. Accused No. 1 (Picharu Bhati) has been further convicted under Section 324, I.P.C 3nd sentenced to R.I for 1½ years. Accused No. 2 (Banshi Bhati) has been further convicted u/S. 304, Pt. II, I.P.C and sentenced to R.I for 4 years. Accused No. 3 (Rajaram Dinda) has been further convicted under Section 325, I.P.C and sentenced to R.I for 3 years — (though imposition of fine is compulsory under Section 325, no fine has been imposed on him).

2. Accused 4 (Bhaira Bhati) has been further convicted under Section 323, I.P.C and sentenced to R.I for one year. Accused 5 (Chaitan Bhati) has been further convicted under Section 324, I.P.C and sentenced to R.I for one year. Accused 6 (Jujesthi Raha) has been further convicted under Section 323, I.P.C and sentenced to R.I for 6 months. The sentences inflicted are to run concurrently. Against the order of convictions and sentences the accused have filed Cr. App. 38/62. They have been acquitted of the charges under Sections 302 and 302/149, I.P.C and Government appeal has been filed to set aside the order of acquittal and to convict them under the aforesaid sections. The prosecution case is as follows: Within the village limit of Padampur, Kudobhatta is a hamlet which is mostly inhabited, by the family members of Ex-Gountia and Gandas. The main village Basti in Padampur is inhabited by the tenants of the village. In between the village and the hamlet there is a lalchar Kata (plot No. 344), which is an irrigating tank. Kata is an irrigating tank having an embankment (Adi) on one side only. Originally the area of this Kata was 1.62 acres in 1938. Satyanarayan Bag, who was then the Gountia-Thikadar of village Padampur, applier for lease of a portion of the bed of this Tank for converting, it into a paddy field.

3. After enquiry, the ex-State Government of Bolangir-Patna granted lease of 0.80 acre which was allotted a separate plot No. 1107 and is known as Kadalimunda Bhag land of the ex-Gountia. In a partition amongst the Gountia and is sons, plot 1107 fell to the share of Jogeswar Bag (P.W 1). The rest of 0.82 acre continued as Kata. The Adi of this Kata lies on the eastern side of the Kata and is plat No. 86 — Plot No. 1107 is to the south of the Kata and touches the southern extremity of the Adi. After the abolition of the Gountia system, the management of the tank was taken over by the Gram-Panchayat in 1958 some tenants of Padampur applied for grant of some money for improvement of this Kata for storing larger quantity of water in it Rs. 400/- was allotted by the Gram. Panchayat and accused 1 who was the Ward member of the Gram Panchayat, took the money for effecting improvement.

4. On July 11, 1958, P.W 1 filed an application (Ex. 2) alleging that the tenants of Padampur were closing the Ghai (the passage through which water is let out) of the Kata which was on the Adi, and as 3 result of which damage would be caused to his land if the water would exceed beyond a certain level. The Sarpanch (P.W 13), Damabrudhar Meher made a local inspection and asked accused No. 1 to put embankment on all sides of the Kata covering it into a full-fledged tank. The Sarpanch was prepared to grant further money for the purpose, if necessary. But accused 1 and other tenants were obstinate and did not listen to the Sarpanch. They only strengthened the Adi by raising its height six feet more. As a result of this, large quantities of water accumulated in the Kata and the Kadalimunda Bhag land in plot 1107 and other lands of P.W 1 were submerged in the year 1958 and no crop could be grown on them. When the height of the Adi was raised, one Biswanath Bag, a cousin of P.W 1 was in the party of the tenants. In 1960, he changed the party and came over to the side of P.W 1.

5. On July 10, 1960, P.W 1 and his servants cut the embankment to bring down the level of the water. In the morning of July 12, 1960, P.W 1 went to the spot with 8 field servants to plough the land. Some of the accused persons, led by accused 1, rebuked P.W 1 for cutting the ridge and opening the Nala, and also assaulted and drove them away from the field. First Information report was lodged in the Police Station by a person from the side of P.W 1. This morning occurrence is not the subject-smatter of the present dispute. The Sub-Inspector of Police deputed a constable to the two villages for having an enquiry at Belpara P.S Padampur, the village of parties, and Belpara P.S are intervened by a river named Lant.

6. At about 3 p.m P.W 1 with his 4 field servants and 13 Gandas (his labourers) went to Kadalimunda Bhag land for weeding the grass to make it fit for transplantation of paddy. When they were weeding the grass on the land, 29 accused persons, armed with various lethal and dangerous weapons, led by accused 1 to 4, came in a body on the ridge of the Kadalimundi Bhag land, abused the Gandas for cultivating the land and asked them to leave the field. When the Gandas replied that they were coolies and prepared to work for wages, accused 1 asked the mob to assault the party of P.W 1. He himself suddenly gave a blow with a Tabal on the head of deceased Subanath Bibhar. When Subhanath turned, he gave another blow as a result of which Subhanath fell down on the land.

7. Accused 2 assaulted deceased Hagru with a Tabal on his head and Hagru fell down. Accused 3 gave two blows with Gujar Bari (a pointed iron rod fixed to a lathi) on the head of deceased Guman Kumbhar and two blows on both sides of his neck as a result of which Guman fell down. Accused 5 assaulted P.W 5, Ambila Kumbhar, the son of Guman, with a tangi. Accused 4 assaulted Guman Kumbhar with a lathi. Accused 6, 7 and 8 had lathis in their hands. Accused 6 assaulted P.W 8 (Musru Kumbhar) with lathi. Subanath died about one hour after the occurrence. Hagru died in the hospital on July 14, 1960 at about midnight.

8. Guman died in the hospital on July 15, 1960 at about 10 a.m F.I.R (Ex. 1) was lodged by P.W 1 at Balpara P.S on July 13, 1960. It is the common case of the parties that there were heavy rains on 11th and 12th July and that river Lant was in high floods.

9. Accused 1 to 3 admit that they were present in the riot. Accused 4 to 8 deny their presence at the place of occurrence. It is not necessary to give the versions of the other 21 accused persons who have since been acquitted. The defence admits the occurrence having taken place at about 4 to 5 p.m on July 12, 1960. According to the accused persons, P.W 1 surreptitiously cut the Adi of the Kata on July 11, 1960 and made a huge gap. On detection the villagers filled up the Ghai but again in the same evening he cut the Ghai open. In the morning of July 12, 1960 when P.W 1 was opening, the Ghai, Accused 1 with other villagers came to the Kata and threatened to assault them if they would not leave the place. P.W 1 with his men left the place and the villagers of Padampur filled up the Ghai. At about 4 p.m P.W 1 came with 16 persona who were mostly Gandas of Mudobhatta armed with Raphas and lathis. P.W 1 was holding a gun. They opened the Nala again. Some villagers of Padampur were giving a watch at the Nala. When words were sent, other villagers came to the spot.

10. Accused 1 requested P.W 1 and his men to leave the spot. P.W 1 and his party men threw stones at the accused persons and there was also stone throwing from the party of the accused. In the riot when Subhnath was raising his Rapha to assault accused 1, one person from P.W Its party gave a blow and the Rapha fell on the head of Subhanath causing injury to him. Bishwanath asked Hagru to assault the accused; but as Hagru did not listen, Biswanath gave a push to him from behind as a result of which Hagru fell on a Guhuria tree sustaining injuries on tins head and became senseless. Guman Kumbhar sustained injuries due to stone throwing from both sides. According to them, the occurrence took place on the Kata Adi and they were not aggressors.

11. The learned Sessions Judge held that the occurrence took place at the southern end of the Adi where the Ghai was opened by the complainant's party. On a reference to the spot map it would be clear that plot 1107 and the that touched each other. In fact plot 1107 has been carved out of the Kata itself. He has further held that it may be that some men of the complainant's party were inside the field in plot 1107 which enjoins the Kata Adi to the scuthern-most corner, but the deceased persons and the Gandas were at the Ghai cannot be disbelieved. In view of the close proximity of the Adi to plot 1107, the finding is correct and cannot be assailed. Whether the occurrence took place at the Adi or inside plot 1107 close to the Adi has not much material bearing on the ultimate decision of the case.

12. It is necessary at this stage to consider as to whether the party of P.W 1 constituted an unlawful assembly. P.Ws 1 and 3 to 12 are the eye-witnesses to the occurrence and all of them have stated that the party of P.W 1 was weeding out grass for making the lands fit for transplantation. They had gone there unarmed. Even if P.W 1 had no right to cut the Adi of the Kata to release the accumulated water, being unarmed he did not enforce that right or supposed right by means of criminal force or show of criminal force. His party, therefore, did not constitute an unlawful assembly.

13. The members of the accused-party all came in a mob from the village armed with various dangerous and lethal weapons. They came to the place of occurrence not to allow the party of P.W 1 to make an opening in the Adi. They by means of criminal force or show of criminal force wanted to enforce a right or supposed right. The usual argument, based on the distinction between maintaining a right and enforcing a right, no longer holds good in view of the decision of this Court reported in ILR (1952) Cut 219, Pranbandhu v. The State. The accused party clearly constituted an unlawful assembly. Even if the complainant's party had constituted an unlawful assembly, the accused would have no valid defence in saying that they would also constitute an unlawful assembly by way of retaliation.

14. When there is a free fight between the parties, each constitutes an unlawful assembly. The members of the complainant's party were already in the field. Admittedly there was copious rain on the 11th and 12th and it was the month of July. If the water of the tank would have been allowed to pass away so as to reduce its volume and level, it would have caused no injury to the accused. They had sufficient time to take recourse to the protection of the public authorities against any interference with their supposed right of the Adi. Under Sec. 99. I.P.C they have no right of private defence. As the complainant's party were already in the field unarmed and the accused in a large number came from their village fully armed, the latter were clearly the aggressors. All the eye-witnesses implicate accused 1 to 8 as being members of the unlawful assembly. Accused 1, 2, 3 and 5 were armed with deadly weapons and are punishable under Sec. 148, I.P.C The other four accused persons carried only lathis and are punishable under Sec. 147, I.P.C

15. (After discussing the evidence concerning accused 1 to 7 in Para 7, the judgment proceeded:)

16. I have already said that accused 1, 2 and 3 are each liable to be convicted under Sec. 302, I.P.C The question for consideration is whether the other 5 accused persons are each to be convicted under Sec. 302/149, I.P.C The scope and applicability of Sec. 149 I.P.C was considered at length in the case of Himirika Lokanath v. State, reported in 1962 Cut LT 435 : (1964 (1) Cri LJ 114). Most of the Supreme Court decisions cited before us were considered in that case and it is unnecessary to cover the same field by further reference to those. This Court held that where several persons assaulted the deceased, the common object can be collected from the nature of the assembly and of the arms used by them and from the behaviour of the assembly at or before the scene of occurrence. The common object is an inference of fact to be deduced from the circumstances of each case.

17. In this case there is admitted litigation an inimical relationship between the parties at least from 1958 onwards. Over the very Adi there was an incident in the morning of the date of occurrence in connection with which a report had been made at the Police Station. No immediate injury or danger was apprehended to the Kata. Accused 1 was obstinate in not converting the Kata into a full fledged tank though the Sarpanch offered advance funds for the purpose. Accused persons came in a large body armed with various dangerous and lethal weapons. The consistent prosecution evidence is that when the accused persons reached the spot, accuse 1 asked the Gandas to leave the spot and immediately after ordered and started assaulting an unarmed party.

18. From all these facts the conclusion is irresistible that the death of the three deceased was committed by accused 1, 2 and 3 in prosecution of the common object of the unlawful assembly. It was laid down in AIR 1959 SC 572, Mizaji v. State of U.P, that

“the test was — did the members of the unlawful assembly intend to attain the common object by means of murder if necessary?”

19. There is evidence in this case that one member from each; of the houses in the village was called to join the party to protect the Adi. The circumstances of this case establish the existence of the common object as being one of murder if it becomes necessary while preventing the party of P.W 1 from cutting the embankment. From the aforesaid circumstances, it is also clear that the members of the unlawful assembly knew it to be likely that murder would be committed in prosecution of the common object. All the rest 5 accused persons are each liable to be convicted under Sec. 302/149 I.P.C

20. It has been argued that accused 7 and 8 committed no overt act and were not members of the unlawful assembly. It is stated that (S) AIR 1956 SC 181, Baladin & Others v. State Of Uttar Pradesh lays down that unless an overt act is committed, a person cannot be said to be a member of the unlawful assembly. This decision was considered, in 1952 Cut LT 435 : (1964 (1) Cri LJ 114). The Supreme Court decision does not lay down any such proposition. The commission of an overt act is certainly evidence of the fact that the accused was the member of an unlawful assembly. But the converse is not true. In other words, it cannot be contended that if there is no proof of commission of certain overt act by an accused, he is not member of the unlawful assembly.

21. All that their Lordships have laid down in this case is that since innocent on lookers may be mixed up with real culprits in a large melee, close scrutiny of the evidence implicating particular persons as being members of the unlawful assembly is essential.

22. Paragraph 28 of the judgment makes it clear that their Lordships acquitted 4 of the appellants on the ground that they might personally have been spectators who got mixed up with the crowd. Whether a person is a member of the unlawful assembly, or not is, a pure question of fact to be determined on the assessment of evidence. Accused 7 and 8 having lathis in their hands have been implicated by the eyewitnesses as being members of the unlawful assembly and they were not innocent spectators who got mixed up in the crowd. (The rest of the judgment is not material for this report — Ed.)

23. Das, J.:— I agree.

CG/V.B.B

24. Govt appeal allowed.

25. Criminal appeal allowed in part.

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