DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY,

VISAKHAPATNAM, A.P., INDIA

+
PROJECT TITLE

CONCEPT OF COMMON OBJECT AND RELATED CASE LAWS

SUBJECT

INDIAN PENAL CODE - I

NAME OF THE FACULTY

DR. P. VARALAKSHMI

NAME OF STUDENT

UMA SHANKAR MISHRA

ROLL NO.

18LLB091

SECTION-B
Section 149 of Chapter VII of IPC, 1860 dealing with the “Offences against Public
Tranquillity” creates a specific offence and declares that a member of an unlawful assembly
is liable for any offence committed by the other fellow members of that assembly. However,
it is not that a member of an unlawful assembly is answerable for every offence committed by
one of his associates during the time they are engaged in the commission of an offence. It is
only in two cases, where a person is held criminally liable for the offence committed by
another member of an unlawful assembly. Firstly, where the offence is committed in
prosecution of the common object of the unlawful assembly, and secondly, where the
members of the unlawful assembly knew that such an offence is likely to be committed in
prosecution of that common object.

In other words, in order to invoke section 149 of the IPC, 1860 the accused must be guilty
either of rioting or of being a member of an unlawful assembly, that is, he must be convicted
either under section 147 (punishment for rioting) or under section 143 (punishment for being
member of an unlawful assembly); and the accused must be aware of the likelihood of the
commission of the offence. The essence of joint liability under section 149, therefore, is that
the criminal act must have been done with a view to fulfill the common object of an unlawful
assembly. In the absence of proof of a common object, a member of an unlawful assembly
cannot be held liable for the offence committed by another member of such an assembly.

Let us take an illustration. Twenty members of a group X, decide to beat the members of the
opposite group Y with an intention to take revenge. During the course of the quarrel A, one of
the members of the group X, stabbed B in his heart who was one of the members of the
opposite group Y, as a result of which B died. Since the act of stabbing by A, was not an act
done in furtherance of the common object of the assembly, nor were the members of the
assembly aware that such an act would take place, as it was not the common object of the
group, therefore, the members of the assembly could not be liable for the act of A. A, alone
would be liable for the murder of B. The other members of the assembly would be liable only
for causing hurt.

Similarly, any sudden and unpremeditated act done by a member of an unlawful assembly
would not render the other members of the assembly liable. Again, mere presence at the
scene of occurrence, without proof of having done anything more is not enough for
conviction under section 49.
K C MATHEW AND OTHERS VERSUS
THE STATE OF TRAVANCORE COCHIN
LNIND 1955 SC 111
Supreme Court of India

Equivalent : [1956] 1 MLJ 130 [LNIND 1955 SC 111], [1955] 2 SCR 1057, AIR 1956 SC
241
SUPREME COURT OF INDIA
Judges:   HON'BLE JUSTICE N. CHANDRASEKARA AIYAR, HON'BLE JUSTICE T.L.
VENKATARAMA AYYAR, HON'BLE JUSTICE VIVIAN BOSE
CRIMINAL APPEAL NO. 97 OF 1953.
15 December 1955

Headnotes

Criminal Trial—Charge against a number of persons of having committed offences under

string of ten sections of the Penal Code without specifying the offence committed by each
accused-—Conviction-—Suslainability.Criminal Procedure Code (V of 1898), section 342 —
Defective examination alleged to result in prejudice to accused—Failure of accused to state
even in the appeal his explanation which he would have given if properly examined—Effect
— Section 537 —Prejudice ?—How to be established.

The charge against a number of persons accused of rioting conspiracy, etc., was lumped
together as follows: The aforesaid offences having been proved by the evidence adduced by
the prosecution, you the accused r 29 have committed offences punishable under? ?. ? and
then followed a string of ten sections of the Travarcore Penal Code . The appellants the
accused, claimed that each accused had not been told separately what offence he is being
tried for and they had been prejudiced in their defence.

Held:Where the body of the charge set out the fact that the accused 1 29 formed an unlawful
assembly and stated the common object; and then the charge specified in detail the part that
each accused had played, in the circumstances each accused was in a position to know just
what was charged against him because once the facts are enumerated the law that applies to
them can easily be ascertained, and in this particular case it was just a matter of picking out
the relevant sections from among he ten mentioned. Section 225 of the Criminal Procedure
Code expressly covers a case of this kind.

The purpose of section 342 of the Criminal Procedure Code is for the purpose of enabling the
accused to explain any circumstances appearing in the evidence against him.? If the accused
is not afforded that opportunity, he is entitled to ask the Appellate Court to place him in the
same position as he would have been in had he been asked. In other words, he is entitled to
ask the appellate Court, which is the ultimate Court of fact, to take the explanation that he
would have given in the first Court into consideration when weighing the evidence in just the
same way as it would have done if it had been there all along. But if he does not ask this in
the last Court of fact he is in little better position when the case comes to the Supreme Court
than he would have been in had he, say, omitted to call, in his defence, a witness who, he
says, would have deposed in his favour. In very exceptional cases he may be allowed to call
such a witness even at such a stage, but if he does not ask for that when his case is under
appeal he would normally have but slender hope of succeeding in the Supreme Court. It is
true he is in a stronger position when section 342 is in question because the section places a
solemn and serious duty on the Court, and the accused can very rightly and properly
complain if the Court fails to do its duty; but when all is said and done he cannot claim to be
placed in a better position than he would have been in had the Court discharged its duty at the
outset. Therefore, all he is entitled to say on appeal is, I was not asked to explain this matter.
Here is my explanation ; this is what I would have said ; please consider it. ? But if he does
not take up that position at the appellate stage and complains of prejudice for the first time in
the Supreme Court, the inference is strong that the plea is an after thought and that there was
no real prejudice.

LEGISLATION CITED/REFERRED TO:

Penal Code, section 302 of the Indian Penal Code , section 225 of the Criminal Procedure
Code , section 342 of the Criminal Procedure Code , section 537 of the Criminal Procedure
Code

ADVOCATES APPEARED:

S. Mohan Kumaramangalam and S. Subramaniam, Advocates for Appellants.

Sardar Bahadur, Advocate for Respondent.
JUDGMENT

The Judgment of the Court was delivered by Bose, J.-

This is a case of rioting in which two police constables were killed. Thirty-one persons were
put up for trial. The learned Sessions Judge acquitted twenty-one of them on all the charges
and acquitted the remaining ten of the most serious charge of all, namely, the offence falling
under the sections of the Travancore Penal Code which correspond to , section 302 of the
Indian Penal Code read with section 149. But she convicted them on several of the; lesser
charges and imposed sentences ranging from two to five years on each count and directed
that the sentences should run consecutively except in tha cases of accused 5 to 8 and 18. She
sentenced each of them on only one count and so there was only one sentence.

The convicts appealed to the High Court and the State of Travancore-Cochin also appealed
against the acquittals on the murder-cum-rioting count.

The High Court dismissed the appeals made by the ten accused and allowed the appeals
against the acquittals and imposed the lesser sentence of transportation in each ease. These
ten accused now appeal here.
The accused are said to be communists. Two of them, namely, numbers 30 and 31, were
arrested on 27th February, 1950 at about 1 p.m. and were confined in the Edappilly police
lock up. The prosecution case is that the other 29 accused entered into a conspiracy to release
their comrades and in pursuance of that conspiracy attacked the police station at about 2 a.m.
on the 28th armed with deadly weapons such as choppers, knives, bamboo and other sticks
and a dagger. Two police constables, Mathew and Velayudhan, were killed in the course of
the raid.

The first point taken before us is that the charge is not according to law and has prejudiced
the appellants in their defence. The complaint on this score is that each accused has not been
told separately what offences he is being tried for. They have all been lumped together as
follows:

“The aforesaid offences having been proved by the evidence adduced by the prosecution, you
the accused 1 - 29 have committed offences punishable under……..”.

and then follow a string of ten sections of the Travancore Penal Code .

We are satisfied that the charge neither caused, nor could have caused, prejudice. The body of
the charge set out the fact that the accused 1-29 formed) an unlawful assembly and stated the
common object; and then the charge specified in detail the part that each accused had played.
In the circumstances, each accused was in a position to know just what was charged against
him because once the facts are enumerated the law that applies to them can easily be
ascertained; and in this particular case it was just a matter of picking out the relevant sections
from among the ten mentioned. There is nothing in this objection; section 225 of the Criminal
Procedure Code expressly covers this kind of case.

The next argument was that the examination of each accused under section 342 of the
Criminal Procedure Code was defective and that that caused prejudice. We agree that the
examination was not as full or as clear as it should have been but we are not satisfied that
there was any prejudice.

It is to be noted that the question of prejudice was not raised in either of the Courts below nor
was it raised in the grounds of appeal to this Court. The point was taken for the first time in
the arguments before us and even there counsel was unable to say that his clients had in fact
been prejudiced; all he could -urge was that there was a possibility of prejudice.

We agree that the omission to take the objection in the grounds of appeal is not necessarily
fatal; everything must depend on the facts of the case; but the fact that the objection was not
taken at an earlier stage, if it could and should have been taken, is a material circumstance
that will necessarily weigh heavily against the accused particularly when he has been
represented by counsel throughout. The Explanation to section 537 of the Criminal Procedure
Code expressly requires the Court to

“have regard to the fact whether the objection could and should have been raised at an earlier
stage in the proceedings”.

Another strong circumstance is this: the petition for appeal does not set out the questions that,
according to the appellants, they should have been asked nor does it indicate the answers that
they would have given if they had; been asked. Again, though that is not necessarily fatal
ordinarily it will be very difficult to sustain a plea of prejudice unless the Court is told just
where the shoe pinches. It is true that in certain exceptional cases prejudice, or a reasonable
likelihood of prejudice, may be so patent on the face of the facts, that nothing more is needed;
but that class of case must be exceptional. After all, the only person who can really tell us
whether he was in fact prejudiced is the accused; and if there is real prejudice he can at once
state the facts and leave the Court to judge their worth. But if the attitude of the aceused,
whether in person or through the mouth of his counsel, is: “I don‘t know what I would have
said. I still have to think that up. But I might have said this, that or the other”, then there will
ordinarily be little difficulty in concluding-that there neither was, nor could have been,
prejudice. Here, as elsewhere, the-Court is entitled to conclude that a person who deliberately
withholds facts within his special knowledge and refuses to give the Court that assistance
which is its right and due, has nothing of value which he can disclose and that if ha did
disclose anything that would at once expose the hollowness of his cause.

The purpose of section 342 is set out in its opening words-

“for the purpose of enabling the accused to explain any circumstances appearing in the
evidence-against him”.

If the accused is not afforded that opportunity, he is entitled to ask the appellate Court to
place him in the same position as he would have been in had he been asked. In other words,
he is entitled to ask the appellate Court, which is the ultimate Court of fact, to take the
explanation that he would have given in the first Court into consideration when weighing the
evidence in just the same way as it would have done if it had been there all along. But if he
does not ask this in the last Court of fact he is in little better position when the case comes
here than he would be in had he, say, omitted to call, in his defence, a. witness who, he says,
would have deposed in his favour. In very exceptional cases he might be allowed to call such
a witness even at such a stage, but if he does not ask for that when his ease is under appeal he
would normally have but slender hope of succeeding here. It is true he is in a stronger
position when section 342 is in question because the section places a solemn and serious duty
on the Court, and the accused can very rightly and properly complain if the Court fails to do
its duty; but when all is said and done, he cannot claim to be placed in a better position than
he would have been in had the Court discharged its duty at the outset. Therefore, all he is
entitled to say on appeal is, “I was not asked; to explain this matter. Here is my explanation;
this is what I would have said: please consider it”. But if he does not take up that position at
the appellate stage and complains of prejudice for the first time here, the inference is strong
that the plea is an afterthought and that there was no real prejudice.

However, as the true meaning of “prejudice” in section 537 and other sections of the Code is
not yet properly appreciated, probably for want of an authoritative decision by this Court, we
invited counsel to tell us what questions his clients should have been asked and at any rate to
indicate what, according to him, they might reasonably have said. His main grievance on this
score is that none of the appellants has been asked about the common object and he said it is
obvious that most of them could very reasonably have said that they had no idea that it was
murder and that they did not even know that any of the members of the assembly carried
lethal weapons.

It is necessary at this stage to explain that both Courts find that there-was an unlawful
assembly and that the police station at Edappilly was raided and that arms and ammunition
and some of the station records were carried away by the raiders; also that two of the police
constables who were on sentry- duty were murdered. The only point on which they differ is
about the common object.

The charge set out that the common object was to rescue the 30th and; 31st accused by force
and to murder the policemen on duty as well as to loot the records, arms and ammunition of
the police station. The learned Sessions Judge found, mainly because of a concession made
by the Public Prosecutor, that the common object could not be placed higher than that of
rescue despite the fact that some of the members were armed with deadly weapons;
accordingly she (for the learned Sessions Judge was a lady) acquitted all the accused of the
charge under section 302 of the Indian Penal Code read with section 149, or rather under the
corresponding provisions of the Travancore , Penal Code .

The State appealed against these acquittals and the High Court thereupon convicted on the
murder-cum-rioting charge and imposed the lesser sentence. The convicts also appealed but
their appeals were dismissed.

In view of the admission made by the learned Public Prosecutor we do not think the High
Court was justified in holding that the assembly had the common object to murder but we do
not think that that makes any difference to the result.

Even if it be assumed that the common object was only to rescue the two accused who were
in the lock up, it is obvious that the use of violence was implicit in that object. People do not
gather together at the dead of night armed with crackers and choppers and sticks to rescue
persons who are guarded by armed police without intending to use violence in order to
overcome the resistance of the guards; and a person would have to be very naive and simple-
minded if he did not realise that the sentries posted to guard prisoners at night are fully armed
and are expected to use their arms should the need arise; and he would have to be a moron in
intelligence if he did not know that murder of the armed guards would be a likely
consequence in such a raid; and what holds] good for murder also holds good for looting in
general. Now section 149 applies not only to offences actually committed in pursuance of the
common object but also to offences that members of the assembly know are likely to be
committed. It would be impossible on the facts of this case to hold that the members of the
assembly did not know that murder was likely to be committed in pursuance of a common
object of that kind by an assembly as large as the one we have here. Accordingly, even if the
common object be not placed as high as murder the conviction on the murder-cum-rioting
charge was fully justified. This answers the main ground of appeal.

But to go back to the argument about section 342 of the Criminal Procedure Code . What we
have to assess here is the explanation which counsel says each appellant could reasonably
have given in the trial Court if he had been asked for one, namely that he did not know that
any member of the assembly carried lethal weapons and that murder was likely to result. The
answer to that is plain. There is nothing to indicate that the appellants are deficient in
intelligence and understanding, and if they are judged by the standard of men of reasonable
intelligence, as they must be, then an explanation of this kind cannot be believed. Men who
band themselves together to rescue persons locked behind prison bars and guarded by armed
police do not set out with bare hands and doves of peace; of course, they arm themselves with
implements that are strong enough to break open locks and break down doors and iron bars
and it is obvious that implements of this kind can be used with deadly effect should the need
and the desire to use them in that way arise. It hardly matters whether each member knew the
exact nature of the implements, namely, that some had choppers and some sticks. It is enough
that they knew that instru- ments that could be used as deadly weapons would necessarily
have to be carried if the purpose underlying the common object was to be achieved.
Therefore, even if the answer now suggested to us had been given in the trial Court it would
have made no difference to the result.

Turning next to the first accused, counsel said that he was not asked about identification in
his examination under section 342. But that is not correct. The question put was-

“P.Ws.1 and 4 say that they had seen you, beating constables Mathew and Velayudhan, etc.”

The point about identification is implicit in this question and we are satisfied that this
appellant understood what the question imported because the cross-examination of these
witnesses discloses that the question of identity was present to the mind of the cross-
examiner; he specifically questioned each witness about the matter.

Next, it was said that no question was put to the first accused about any robbery, but we need
not examine this any further because the matter becomes academic once the murder-cum-riot
conviction is upheld and once we make the sentences concurrent instead of consecutive as we
intend to do.

The arguments on this point about the rest of the appellants except the seventh accused,
followed the same pattern and we need not examine them separately.

As regards the seventh accused, the only point of substance in his case is that he was not
asked to explain his presence at Kadiparambu where the agreement to rescue and the
planning are said to have taken shape. Counsel said that this accused lives there, so the mere
fact that he was seen among a crowd that had gathered there in the day time could not be
regarded as a circumstance of suspicion. That would have had force had it not been for the
fact that he was again seen at the police station at 2 a.m. and was identified as one of the
rioters who took an active part in the raid.

We have gone into the question of possible prejudice under section 342 in the way we have
because, as we have said, appellants do not appear to appreciate what is necessary when this
kind of plea is raised. We do not intend to lay down any hard and fast rule but we do wish to
emphasise that what we have done in this case is not to be regarded as a precedent and that in
future it will be increasingly difficult to induce this Court to look into questions of prejudice
if the requisite material is not placed before it and if appellants deliberately withhold from the
Court assistance which it is in their power to render an inference adverse to them must be
expected if that attitude is adopted.

Counsel then tried to attack the credibility of the witnesses and the correctness of the findings
generally but, following our usual practice, we decline-to interfere with the concurrent
findings of fact where there is ample evidence which, if believed, can be used in support of
the findings. That is the position here.

The only ground on which interference is called for is where the sentences were directed to
run consecutively. The High Court confirmed the convictions, and sentences passed by the
learned Sessions Judge but when it allowed the appeal by the State and passed the lesser
sentence it said that “the sentences passed on each accused will run concurrently”. We are not
sure whether the learned Judges meant that the sentences imposed by them should run
concurrently with the others or whether they meant to allow the appeal to that extent. In order
to remove all doubts, we allow the appeal to the extent of directing that the sentences
imposed on each accused shall run concurrently and not consecutively. Except for that, the
appeal is dismissed.

HUKUM SINGH AND OTHERS VERSUS STATE OF UTTAR PRADESH

LNIND 1961 SC 136

Supreme Court of India

Equivalent : AIR 1961 SC 1541, [1961] 1 MLJ (Crl) 667 [LNIND 1961 SC 136], [1962] 1
MLJ (Crl) 286 [LNIND 1961 SC 136], 1961 All LJ 587, 1961 All WR (HC) 506, 1961 BLJR
707, 1961 Mad LJ (Cri) 667, 1961 MPC 720, 1962 1 SCJ 456, 1962 1 SCR 601, 1961 2 Cri
LJ 711, 1961 2 SCJ 586, 1961 All Cr R 293
SUPREME COURT OF INDIA
Judges:   THE HONOURABLE MR. JUSTICE K. SUBBA RAO, THE HONOURABLE
MR. JUSTICE RAGHUVAR DAYAL
CRIMINAL APPEAL NO. 165 OF 1960
28 March 1961

Headnotes

Penal Code (XLV of 1860), sections 149and 302 —Criminal trespass—Objections certain as
damage to growing crops resulted—Trespass by number of persons one of whom was armed
with hatchet—Inference of common object to use violence—Propriety—Injuries causing
death—Offence of murder.

The appellants, admittedly, took their carts through the field of Harphool and had not crossed
over when the rioting and injuries took place. On the concurrent findings of facts by the
Sessions Judge and he High Court it was held: (i) There was no passage through that field;
(ii) it was the appellants party that began the attack; (iii) they had no right of private defence
of person but had formed into an unlawful assembly with the common object of criminal
trespass and use of force to the extent of causing death; if necessary, if they were prevented
from taking the carts through the field. The)?were accordingly convicted of the various
offences.

In this appeal against the conviction the appellants? contentions were; (i) Any right of private
defence of property, Harphool had. had ceased when the trespass was over; (ii) if one of the
rioters caused injury for which others are to be liable under section 149 , Penal Code, the
injury must be caused in pursuance of the common object; (iii) an assembly ceases to be
unlawful after the completion of the common object and the , section 149 would not then
apply; (iv) the High Court misdirected themselves in raising certain inferences from the facts
found.

Held: The criminal trespass had not come to an end and there is also no such finding by the
Courts when the two carts of the appellants were well inside Harphool’s field with growing
crops, and had not reached the public passage. Harphool had the right to prevent the
appellants party from continuing to commit criminal trespass for whatever short distance they
had still to cover to reach the passage.

It may be, if Harphool started to attack in the circumstances alleged by the appellants there
may be some scope for saying that he acted unreasonably in taking recourse to force in
preference to recour to public authorities and the law. Therefore the three propositions of law
raised by the appellants which, as abstract propositions of law are sound to some extent, do
not arise in this case.

The fourth contention is really against the common object of the appellants? party as found
by the High Court. The appellants, though they had another and a shorter route to reach the
public.passage way through their own fields and of one of their own community choose the
longer route over the fields (with growing crops) of several Sainis including Harphool’s.
They should have expected it might give rise to protests and objections and unless they
retraced they would have to insist on the proceedings through the objectors? fields leading to
clash and violence.

Where the appellants? party consisted of a number of persons armed with lathis and one of
them with a hatchet and are agreed to use the weapons in case they are thwarted in the
achievement of the object of passing through the fields, it is by no means incorrect to
conclude that they were prepared to use violence in prosecution of the common object and in
the process it was likely that some one might be so injured as to die as a result of those
injuries. Harphool did receive several injuries and as a result died within 24 hours of
receiving injury.

The High Court was right in holding the offence made out, caused by the concerted acts of
the members of the party, to be one of murder.

Appeal by Special Leave from the Judgment and Order, dated the 19th December, 1958, of
the Allahabad High Court in Criminal Appeal No. 1010 of 1956.

LEGISLATION CITED/REFERRED TO:

criminal act

ADVOCATES APPEARED:

For the Appellant: Jai Gopal Sethi, C.L. Sarin, R.L. Kohli.

For the Respondent: G.C. Mathur, C.P. Lal, Advocates.

RAGHUBAR DAYAL, J.
Judgment

This appeal, by special leave, is by four persons against the order of the High Court of
Judicature at Allahabad dismissing their appeal and confirming their conviction for several
offences including one under S. 302 read with s. 149, I.P.C., by the Sessions Judge,
Saharanpur. These appellants, along with three other persons, were alleged to have forcibly
taken two carts loaded with sugarcane from the field-of Suraj Bhan through the field of
Harphool, in transporting the sugarcane from the field, about a furlong and a half away, to the
public passage running by the side of Harphool s field, and to have beaten Harphool and
others on Harphool s protesting against the conduct of the appellants party at the damage
caused to his wheat and gram crop. Ram Chandar, one of the appellants, was armed with a
hatchet (kulhari) and the others were armed with lathis. Harphool and others who came to his
help struck the appellants party also in self-defence. Harphool died as a result of the injuries
received in this incident. The appellants admitted their taking the carts through Harphool s
field and alleged that at Harphool s protest they asked to be excused, promised not to take the
carts through the fields in future and pleaded for the carts being allowed to cross the very
small portion of the field which remained to be covered before reaching the public passage.
The accused state that in spite of all this meek conduct on their part, Harphool and his
companions attacked them and that then they also struck Harphool and others in self-
defence.

2  Both the learned Sessions Judge and the learned Judges of the High Court arrived at
concurrent findings of fact an & held that

(i) there was no passage through or along the boundary of Harphool s field;

(ii) when the carts were near the passage and Harphool protested, the appellants party began
the attack; and

(iii) the appellants party had no right of private defence of person but had formed an unlawful
assembly with the common object of committing criminal trespass over Harphool s field and
using force to the extent of causing death, if necessary, in case they were prevented from
taking the carts through the fields. They accordingly convicted the appellants of the various
offences.Mr. Sethi, learned counsel for the appellants, has raised four contentions:

(i) Any right of private defence of property which Harphool had against the offence of
criminal trespass committed by the appellants party, had ceased when the criminal trespass
was over or when the trespassers indicated their intention to cease the criminal trespass;

(ii) If one of the rioters causes injury for which the other rioters are to be liable under s. 149,
I.P.C., the injury must have been caused in prosecution of the common object;

(iii) An assembly ceases to be an unlawful assembly after the completion of its common
object and only that member of the unlawful assembly would be liable for any criminal act
committed later, who has actually committed it; and
(iv) The learned Judges of the High Court misdirected themselves in raising certain
inferences from the facts found.

3  It is clear, from the first three contentions raised, that they are all based on the supposition
that the criminal trespass which the appellants party was committing had come to an end
when Harphool is said to have prevented them from committing criminal trespass and that it
was Harphool who began the attack. There is no such finding recorded by the High Court.
The two carts had not left Harphool s field and reached the public passage. They were inside
the field when the incident took place. They were near the boundary of Harphool s field.
They must, in, the circumstances, have been several yards inside the field. Criminal trespass
had not therefore come to an end and therefore Harphool had the right to prevent the
appellants party from continuing to commit criminal trespass for whatever short distance they
had still to cover before reaching the public pathway. It is true that the appellants party had to
get out of the field and that this they could not have done without committing further criminal
trespass. But it does not follow that this difficult position in which the party found itself gave
them any right for insisting that they must continue the criminal trespass. They had to abide
by the directions of Harphool, whatever be the degree of patience required in case they were
not allowed to move in any direction in order to leave the field. If Harphool had started the
attack in the circumstances alleged by the appellants, there may have been some scope for
saying that he acted unreasonably in taking recourse to force in preference to taking recourse
to public authorities or to such action which a less obstinate person would have taken and had
therefore lost any right of private defence of property against the offence of criminal trespass.
We are therefore of opinion that the three propositions of law which, as abstract propositions
of law, are sound to some extent, do not arise in the present case. The fourth contention is
really directed against the view of the High Court that the common object of the appellants
party was to force their way through the fields of Harphool and to use force to the extent of
causing death, if necessary, and that the death of Harphool was caused in prosecution of that
common object. We do not agree with the contention. It is clear from the site plan, and has
been so held by the Courts below, that the appellants party could have taken their carts to the
same public passage by going northwards from Suraj Bhan s sugarcane field. In so doing,
they would have had to cover a shorter distance up to the public pathway and would have had
the necessity to trespass through one field only, and that too, of one of their own community
Sandal Rajput. The other fields lying on the way were of Suraj Bhan himself. Their choosing
a longer route which made them take their carts through the fields of several Sainis including
Harphool, could not be justified. It must have been obvious to them that in so doing they
would cause damage to the crops growing in the number of fields through which they would
have to pass. Such damage must give rise to protests by the persons to whom loss is caused. It
could be expected that some such persons might object to the passing of the carts and that
unless they be prepared to cover back the distance to their own field, they would have to
insist on proceeding through the objector s field. Such instances must lead to a clash and to
the use of violence. The objector is not expected to be prepared for such a conduct of the
appellants party and therefore for using force. The appellants party consisted of a number of
persons one of whom was armed with a hatchet. It is therefore not unreasonable to conclude
that the appellants party was prepared to use force against such an objector to achieve their
object of taking the carts to the public pathway by a short-cut. The northern route, previously
mentioned, was certainly shorter to reach the public passage, but that route, along with the
longer portion of the public passage to be covered before reaching the spot near which the
incident took place, was longer than the westerly route through the field which the party had
taken. When several persons are armed with lathis and one of them is armed with a hatchet
and are agreed to use these weapons in case they are thwarted in the achievement of their
object, it is by no means incorrect to conclude that they were prepared to use violence in
prosecution of their common object and that they knew that in the prosecution of such
common object it was likely that some one may be so injured as to die as a result of those
injuries. Harphool did receive seven injuries one of which was an incised wound, bone deep,
on the right side of the head. Another injury consisted of a contused wound, bone deep, on
the left side of the head. Harphool died within twenty-four hours of his receiving injuries.
The death was due to shock and hemorrhage caused by the injuries of the skull bone and
brain on account of the wounds on the head. The offence made out on account of the death of
Harphool caused by the concerted acts of the members of the appellants party has been
rightly held to be the offence of murder.In view of what we have stated we do not see any
force in this appeal. It is accordingly dismissed.

HUKUM SINGH AND OTHERS VERSUS STATE OF UTTAR PRADESH LNIND 1961
SC 136