SILAJIT MAHTO Vs. EMPEROR

JUDGEMENT

(1.) The six appellants before this Court have all been convicted under Section 147 of the Indian Penal Code. One of them, Silajit Mahto, has also been convicted under Section 304, and another, Sudhakar, has been convicted under Section 323. Silajit has been sentenced to rigorous imprisonment for five years, Sudhakar to rigorous imprisonment for two years, and the other four appellants to one year each.

(2.) There is no real dispute as to the facts. The learned Sessions Judge has found that the appellants were in possession of their land, and were engaged in cutting the paddy which they had grown. The complainant's party came and attempted to cut the paddy; there was a fight, the result of which was that one man was seriously wounded and subsequently died. The learned Sessions Judge has held upon these facts that the accused are liable to be convicted under Section 147 of the Indian Penal Code, inasmuch as they were members of an unlawful assembly, the common object of which was to enforce a right to property.

(3.) It has been argued before us that the conviction under Section 147 cannot be sustained on two grounds: first, that the common object as stated in the charge has not been established: and, secondly, that upon the facts found there was no unlawful assembly. In our opinion, each of these contentions is well-founded. The common object, as stated in the charge, was to assault the complainant and his men who were cutting the paddy of their land and thereby forcibly to oust them from the land. The common object which has been established upon the evidence, according to the Sessions Judge, was to maintain possession of the land by the accused persons. It. cannot be laid down as a general proposition of law that a conviction under Section 147 cannot be supported whenever the common object, as stated in the charge, is not precisely made out. The question in each individual case is whether the common object established agrees in essential particulars with the common object as stated in the charge. In the present case there can be no doubt that the common object, as stated in the charge, has not been substantially established. It may, however, be further pointed out that under Section 141, Sub-section (4) of the Indian Penal Code, which alone is supposed to have any application to the present case, an assembly is unlawful if the common object is shown to be to enforce any right or supposed right. Upon the facts which have been established, the common object here was not to enforce any right or supposed right. It was rather to maintain undisturbed the actual enjoyment of a right. If so, no question of unlawful assembly arises. Under these circumstances, we must hold that the conviction under Section 147 as regards all the appellants must be set aside.