MIZAJI AND ANOTHER versus THE STATE OF U.P.

Citation: [1959] SUPP. 1 S.C.R. 940 · Decided: 18-12-1958 · Supreme Court of India · Bench: SYED JAFFER IMAM · Disposal: Dismissed

Judgment (excerpt)

940 
SUPREME COURT REPORTS [1959] Supp. 
z95B 
large area of land thus constituted and on account of 
getting a compact block for themselves, is inadequate. 
Altar Singh 
h 
and Othm 
Therefore, assuming t at Art. 31 (2) applies as it was 
v. 
before the Fourth Amendment, it cannot be said that 
n, Stale of u. P. the compensation which the tenure.holders will get 
under s. 29-B is inadequate in the circumstances. This 
Wa•<hoo J. 
ground of attack also therefore fails. 
Dtcemb1r 18. 
There is no force in this petition and it is hereby 
dismissed with costs. 
Petition dismissed. 
MIZAJI AND ANOTHER 
v. 
THE STATE OF U.P. 
(JAFER IMAM, S. K. DAs and J. L. KAPUR, JJ.) 
Murder-Unlawful Assembly-Common object to take forcible 
possession-Killing by one-Liability of others-Sentence-Indian 
Penal Code, z86o, (XLV of z86o) ss. z49 and 302. 
Early one morning the five appellants, Tej Singh armed 
with a spear, his son Mizaji armed with a pistol which he carried 
in the folds of his dhoti, his nephew Subedar, his cousin Macha) 
and his servant Maiku armed witli Jathis went to take forcible 
possession of a field which was in the cultivatory possession of 
Rameshwar and others. While Tej Singh stood guard, Maiku 
started ploughing and overturning the jowar that had been sown 
in one portion of the field and the others started cutting the 
sugarcane which stood in another portion. When Rameshwar 
and others arrived they protested to Tej Singh, whereupon all 
the accused gathered near Tej Singh and asked the complainants 
to go away otherwise they would be finished. On their refusal 
to go, Tej Singh asked Mizaji to fire at them and Mizaji shot 
Rameshwar dead. The Courts below found that the common 
object of the unlawful assembly was to take forcible possession 
of the field and to meet every eventuality even to the extent of 
causing death if interfered with. It accordingly convicted the 
appellants under s. 302 read with s. 149, Indian Penal Code, and 
sentenced Mizaji to death and the others to imprisonment for 
life. The appellants contended that the other appellants could 
not have the knowledge that Mizaji carried a pistol in the folds 
,,
,
\ 
(1) S.C.R. 
SUPREME COURT REPORTS 
941 
of his dhoti, that the murder was not committed in prosecution 
of the common object to take forcible possession nor did the 
other appellants know that murder was likely to be committed 
in furtherance of the common object. 
Mizaji 
and Another 
Held, that the appellants had been rightly convicted and 
sentenced under s. 302 read wita s. 149, Indian Penal Code. The The 
extent to which the members of the unlawful assembly were 
prepared to go in prosecution of the common object, is indicated 
by the weapons carried by them and their conduct. The 
circumstances show that the appellants must have known that 
Mizaji was carrying a pistol. The appellants were prepared to 
take forcible possession at any cost and the murder was imme-
diately connected with the common object. Under the first part 
of s. 149 the offence committed in prosecution of the common 
object must be. one which was committed with a view to accom-
plish the common object and must be connected immediately 
with the common object of the unlawful assembly of which the 
accused were members. Even if the offence committed was not 
in direct prosecution of the common object of the assembly, it 
would yet fall under s. 149 if it could be shown that the offence 
was such as the members knew was likely to be committed. The 
expression 'know' does not mean a mere possibility, such as 
might or might not happen. 
Queen v. Sabid Ali, (1873) 20 W.R. S Cr., Chikkarange Gowde 
v. State of Mysore, A.LR. (1956) S.C. 731, referred to. 
The fact that the appellants went to take possession in the 
absence of the complainants did not .show that the common 
object was not to take forcible possession as proceedings were 
going on between the parties in the Revenue Court for posses-
sion over the field and the appellants had gone armed with, 
lethal weapons prepared to overcome the opposition which they 
knew they would meet. 
Mizaji was rightly given the sentence of death. 
He shared 
the common object of the unlawful assembly and carried the 
pistol from his house to use it in prosecution of the object and 
did use it. The fact that he used the pistol at the instance of 
his father was not a mitigating circumstance. 
CRIMINAL 
APPELLATE 
JURISDICTION: 
Criminal 
Appeals Nos. 81 and 82 of 1958. 
Ap

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