LexMAHADEVA SHARMA & OTHERS versus STATE OF BIHAR
Open in Lexace · Ask the AI about this caseJudgment (excerpt)
MAHADEVA SHARMA & OTHERS v. STATE OF BIHAR April 21, 1965 [A. K. SARKAR, K. SUBBA RAO, M. H!DAYATULLAH AND J. R. MUDHOLKAR, JJ.] Criminal Lan·-A/ternative chGJ·ges under s. 302 read with s. 34 and 8. 302 read with 149 of the Indian Penal Code-No charge under 8. 147 ors. 148--Conviction under s. 302 read with s. 149-Legallty. The appellants were charged alternatively under s. 302 read with s. 149 and s. 302 read with s. 34 of the Indian Penal Code, 1860. They were convicted under s. 302 read with s. 149. On the question whether the conviction was legal, when they were not charged and convicted under s. 147 ors. 148. HELD : It \Va.Y not obligatory to charge th·e accused under s. 147 or s. 148 before s. 149 could be utilized against them. [22D; 23] For the application of s. 149 there must be an unlawful assembly. If an offence is committed in prosecution of the common object of that assembly or is such a'i the members of the unlawful assembly know to be likely to be committed then whoever ii:; a member of that assembly at the time th·~ offence is committed, is guilty. A charge under sections 143 or 147 is not a condition precedent before se.ction 149 is utilized. because, these arc implied in circumstances in which s. 149 is used, and mu&t always be present when the charge is laid for an offence like murder \Vith the aid of s. 149. There can be proof under s. 149. of the existence of an unla\vful asscn1bly of .the coffimon object and o( the part played by that unlawful assembly or any of its members, same as tmder s. 143 or s. 147 or s. 148. There may be additional charges under these sections to guard against failure of the charge for an offence read, ·with s. 149, but the other charges cannot be regarded as condition precedent. [22 B-C; 23 C-D, H; 24A] CRIMINAL APPELLATE JURISDICTION : Criminal Appeals Nos. 209 of 1962 and 3 of 1963. Appeals by special leave from the judgment and order dated August 30, 1962, of the Patna High Court in Government Appeal No. 33 of 1959 and Cr. Appeal No. 392 of 1959 respectively. S. P. Varma, for the appellants (in Cr. A. No. 209 of 6;2). K. K. Sinha, for the appellants (in Cr. A. No. 3 of 1963). U. P. Singh, for the respondent (in both the appeals). A B c D E .. F G H A B c D E G • H MAHADEVA v. STATE (Hidayatullak, J.) I~ The Judgment of the Court was delivered by Hidayatullah J. In these two appeals by nine persons, who have been convicted under s. 302/149, Indian Penal Code, special leave is limited to one question of law, namely, whether the accus- ed could be legally convicted under the above sections when they were not charged and convicted under s. 14 7 or s. 148 of the Indian Penal Code'! It appears from the judgment under appeal that tl1ere was a difference of opinion on this point in the High Court at Patna and the appeals in the High Court wer" disposed of by a Full Bench which held that charges under ss. 147 and 148 were not necessary before conviction under s. 302, Indian Penal Code could be made with the aid of s. 149, Indian Penal Code. In view of the limited nature of the appeals only the essential facts may be stated. The person who lost his life was one Misari who was related to some of the accused persons. In the past there were other incidents. In 1955 one Ajablal was murdered and some of the present accused were prosecuted but were acquit- ted. Subsequently, one Baldeo Sharma was murdered and some of the prosecution witnesses in this case were charged with that offence. At the time of the judgment under appeal (August 30, 1962) an appeal was pending in the Patna High Court against the conviction of the accused in that case. The present occurrence took place on April 24, 1958. The prosecution case is that Misari was going in the morning to call labourers when he was attacked by the appellants with diverse weapons. He died as a result of his injuries and a case was registered under s. 302, Indian Penal Code. The appellants were charged at the trial alternatively under s. 302/ 149 and 302/34, Indian Penal Code. The Additional Sessions Judge, Monghyr convicted three of the appellants on both the charges, sentencing them to imprisonment for life on the first charge only. The remaining accused were acquitted. Appeals by those who were convicted and by the State Government against the acquit- tal of the others were heard together and were disposed of by the com
Excerpt shown. Read the full judgment & AI analysis in Lexace.