BHARWAD MEPA DANA & ANOTHER versus STATE OF BOMBAY

Citation: [1960] 2 S.C.R. 172 · Decided: 10-11-1959 · Supreme Court of India · Bench: S.K. DAS · Disposal: Dismissed

Cited by 6 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

. , 
172 
SUPREME COURT REPORTS [1960(2)] 
z959 
Governme!lt Road Transport Department which alone 
Mahaboob 'sh,,iff has contested these petitions. 
:V. 
· 
In Petition No. 76 of 1959. 
Mysore Slate-· - - I 
d 
'th h 
· · 
f th 
· "t 
Transpo,tAuthority 
n accor a1~c~ WI 
... t e op1n1on o 
e maJor1 y, we 
_ 
allow the petit10n and quash that part of the order 
Kapur J. 
complained against which ,specified the renewal of the 
permits· upto September 30, 1959, and direct the 
Authorities to comply with the requirements of the law 
as laid down in s. 58(l)(a) read with s. 58(2) in the 
order of renewal made by them in favour of the peti-
tioners on April 30, 1959. 
z959 
N ovembeT IP 
• The petitioners will get their costs; except hearing 
costs as the hearing was common with Petition No. 75 
of 1959, from the l\Iysore Government Road Transport 
Department which alone has opposed-the petition. 
BHAR,VAD MEPA DANA & ANOTHER 
v. 
STATE OF BOl\IBAY 
(S. K. DAS, A. K. SARKAR and l\I. HrnAYATULLAH, JJ.) 
Criminal Trial-Murder-Unlawf"l assembly-Commo;• object 
"'-Acquittal of some, conviction of less than five-Legality of-
Common intention-No proof who gave fatal blows-Effect of-
Indian Penal Code, z86o (XLV of z/!60), ss. 34 and z49. 
T\velve named persons. including ·the t\vo appellants, \vere 
charged with having forraed an unlawful as,embly with the 
common object of committing the murder of three persons. 
The 
Sessions Judge acquitted seven of the accused but convic,ed ' 
five· under s. 302 read with 149 and s. 302 read with 34 of the 
Penal Code. He sentenced the appellants to death and the other 
three to imprisonment for life. On appeal, the High Court 
acquitted one of the other three convicted persons but main-
tained the conviction and sentences of the appellants and the 
two others. The High Court held that there were te"n to thirteen 
persons in the unlawful assembly though the identity of all the 
· persons except four had not been established, that all these 
. persons had the common object and the common intention of 
killing the victims and that the killing was done in prosecution 
of the common object of the unlawful assembly and in further-
ance of the common intention of all. The appellants contended 
that they having been charged with sharing the common object 
and common intention with certain named. persons, it was not 
' 
• 
; 
-
S.C.R. 
SUPREME COURT REPORTS 
173 
open to the High Court to hold that they shared the common 
z959 
object or the common intention with certain other unspecified 
persons or with some of the persons who had been acquitted, and 
Bharwad 
that in the absence of any finding that the appellants gave the 
Mepa Dana 
fatal blows they could not be held constructively liable for the 
v. 
murders either under s. 149 ors. 34, Penal: Code, for blows given State of Bombay 
by some unknown persons. 
Held, that the appellants had been rightly convicted, Even 
though the number of convicted persons was less than five the 
High Court could still apply s. 149 in convicting the four persons. 
There was nothing in law which prevented the High Court from 
finding that the unlawful assembly consisted of the four convicted 
persons and some unidentified persons, who together numliered 
more than five. 
In doing so the High Court did not make out a 
new unlawful assembly different from that charged; the assem-
bly was the same assembly but what had happened was that the 
identity of all the members had not been clearly established. 
Kapildeo Singh v. The King, [1950) F.C.R. 834, Dalip Singh 
v. State of Punjab, [1954] S.C.R. 145 and Nar Singh v. State of 
Uttar Pradesh, A.LR. 1954 S.C. 457, applied. 
There was no difficulty in the application of s 34, Penal Code 
as the number of convicted persons was four and" there was· a 
clear finding that they shared the common intention with some 
others whose identity was not established. Even if it was not 
known which particular person or persons gave the fatal blows, 
once it was found that the .murders were committed in further-
ance of the common intention of all, each one of such persons 
was liable for the murders as though they had been committed 
by him alone. 
The section was intended to meet a case where 
members of a party acted m furtherance of the common inten-
tion of all but it was difficult to prove exactly the part played 
by each of them. 
· 
Wasim Khan v. The State of Uttar Pradesh, [1956) S.C.R. 191, 
referred to. 
Prabhu Babaji Navl

Excerpt shown. Read the full judgment & AI analysis in Lexace.