Authored By : Beverley, Banerjee

Beverley and Banerjee, JJ.

1. The appellant has been convicted by the Sessions Judge ofBackergunge under Section 302, read with Section 149, and under Section 436 ofthe Indian Penal Code, of the offence of murder which was committed by somemembers of an unlawful assembly of which he was a member, in prosecution of thecommon object of that assembly, and of the offence of causing mischief by fireto a human dwelling, and he has been sentenced to transportation for life.

2. In appeal it is contended before us first, that theevidence is insufficient to warrant the finding that the accused was present atthe riot; secondly, that, oven if it be found that the accused was present atthe riot, the evidence is insufficient to warrant his conviction for murder,the requirements of Section 149 of the Indian Penal Code not being shown tohave been fulfilled; and, thirdly, that the evidence is insufficient to warrantthe conviction under Section 436 of the Indian Penal Code.

3. With reference to the first and the third contention itis enough to say that we have considered the evidence and the comments upon itby the learned vakil for the appellant, but we see no reason to think that itis either insufficient or unreliable. We think it is sufficient to warrant thefinding that the accused was present at the riot, and after the firing of theguns, when the rioters began to disperse, on hearing that a man had beenkilled, he, along with certain other members of the unlawful assembly, removedthe dead body of Safiruddin and set fire to the huts of the attacked party.

4. In support of the second contention the learned vakil forthe appellant relies strongly on the finding of the Court below that, up to thesetting fire to the house, the accused did nothing in particular, and upon theauthority of the decision in the case of the Queen v. Sabed Ali 11 B.L.R. F.B.347 : 20 W.R. Cr. 5 urges that the conviction under Sections 302 and 149 shouldbe set aside. On the other hand, Mr. Kilby for the Crown contends that,considering the facts that the accused was one of a body of rioters of whom sixwere armed with loaded guns and fired them in a volley, that he was himselfarmed with a spear, and that after the murder he removed the dead body ofSafiruddin, the conviction for murder should be held to be right, and he reliesupon the case of Hari Singh v. The Empress 3 C.L.R. 49.

5. We do not think that either of the two cases cited laysdown any hard and fast rule applicable to all cases. The only general principlelaid down by the majority of the Full Bench in Sabed Alis case is that, inorder to bring a case under the first part of Section 149 of the Indian PenalCode, the offence, which is there spoken of as committed in prosecution of thecommon object of the unlawful assembly, must be one which is committed with aview to accomplish the common object. But each of the two cases was decidedwith reference to its own facts, and every case depending upon the applicationof Section 149 of the Indian Penal Code must be so decided.

6. In dealing with such cases, while, on the one hand, it isnecessary for the protection of accused persons that they should not, merely byreason of their association with others as members of an unlawful assembly, beheld criminally liable for offences committed by their associates, which theythemselves neither intended, nor knew to be likely to be committed, on theother hand, it is equally necessary for the protection of peace that members ofan unlawful assembly should not lightly be let off from suffering the penaltiesfor Offences for which, though committed by others, the law has made thempunishable by reason of their association with the actual offenders with onecommon object. The cases of Sabed Ali and Hari Singh cited above, respectively,emphasize the necessity of keeping in view the one and the other of these twoconflicting, but equally necessary, considerations. We may add that members ofan unlawful assembly may have a community of object only up to a certain point,beyond which they may differ in their objects, and that the knowledge possessedby each member of what is likely to be committed in prosecution of their commonobject, will vary, not only according to the information at his command, butalso according to the extent to which he shares the community of object; and,as a consequence of this, the effect of Section 149 of the Indian Penal Codemay be different on different members of the same unlawful assembly.

7. Having these considerations in view, and having carefullygone through the evidence, we think the appellant has been rightly convictedunder Section 302, read with Section 149 of the Indian Penal Code. He had aninterest in the subject-matter of the dispute; he had, previous to theoccurrence, used threats to the persons in possession. On the scene of theoccurrence he was present armed with a spear, and was among those who werecarrying the guns and who fired the fatal shots; and after the murder wascommitted, instead of leaving the place at once, he busied himself in removingthe dead body of Safiruddin and in setting fire to the huts of his adversaries.These facts, in our opinion, clearly show that the conditions, required bySection 149 to be fulfilled in order to make one member of an unlawful assemblyguilty of an offence committed by any of his associates, have been satisfied inthis case. They fully warrant the conclusion that the murder that took placewas committed in prosecution of the common object of the unlawful assembly, ofwhich the appellant was a member, namely, the turning out of the opposite partyfrom the huts in question at any risk, in which common object he fully shared,and, further, that he knew it to be likely that murder would be committed inprosecution of that common object.

8. We must, therefore, affirm the conviction and sentenceand dismiss the appeal.

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Jahiruddin vs.Queen-Empress (21.12.1894 - CALHC)