RAMU GOPE AND ORS. versus STATE OF BIHAR

Citation: [1969] 2 S.C.R. 558 · Decided: 29-10-1968 · Supreme Court of India · Bench: J.C. SHAH · Disposal: Dismissed

Judgment (excerpt)

558 
RAMU GOPE AND ORS. 
A 
v. 
STATE OF BffiAR 
October 29, 1968 
[J. C. SHAH, V. RAMASWAMI AND A. N. GROVER, JJ.J 
B 
Indian Penal Code, 1860, ss. 149, 302-Convwtion by trial Court of 
,.,, 
H as one member of unlawful assembly under s. 302 for causing death 
""' 
of a person in pursuance of common ob;ect and of others under s. 302 
read with s. 149-High Court acquitting H in appeal but confirming con-
viction of others-If conviotipn sustainable. 
The appellants and one H were tried on the charge that on July 2, 
1962 they had formed an unlawful assembly and in prosecution of the 
common object of the unlawful assembly 
i.e., to rescue their cattle 
which had damaged the maize crop of one B and had on that account been 
detained by the villagers, made an assault on persoris resisting the rescue 
causing injuries to various PersOns including B as a result of which B 
died. 
The Trial Court, relying on the evidence of certain witnesses, held 
that H had caused injuries with a spear to B which resulted in her death. 
It therefore convicted H of an offence under s. 302 I.P.C. and the ap-
pellants for an offenoe under s. 302 read withs. 149 I.P.C. The High Court 
in appeal acquitted H as it entertained a doubt about his presenoe in 
the unlawful assembly, but confirmed the conviction of the other appellants. 
In appeal to this Court it was contended on behalf bf the appellants 
that because of the acquittal of H, the conviction of the other appellants 
for an offence under s. 302 read with s. 149 I.P.C. could not, in law, 
be sustained; when according to the prosecution case H was responsible 
for causing the; death of B and he was acquitted, the appellants who 
were charged with sharing the common object of the unlawful assembly 
could not be 
convicted for the vicarious liability arising out of the 
offence committed in prosecution of the common object of the unlawful 
assembly. 
HELD : 
Dismissing the appeal : 
The order of conviction of the appellants for the offence 
under 
s. 302 read with s. 149 I.P.C. was not rendered illegal because H was 
held not to have been a member of the unlawful assembly. [562 Bl 
c 
D 
E 
f • 
F 
There was clear evidence to show that B was one of the persons 
' 
upon whom an attack was made and inluries inflicted! by the unlawful 
,. 
assembly of which the appellants and others were 
members. On the 
G 
l 
findings of the High Court, the offender who actually caused injuries to 
B could not be ascertained : it follows that the injuries wern caused to 
B by sbme members of the unlawful assembly. [561 HJ 
Failure to prove the presence 
of the named offender 
among 
the 
members of the unlawful assembly will not affect the criminality of those 
who are proved to be members of the asse'!'bly if the other conditions 
of the applicability of s. 149 I.P.C. be estabhshed. [561 A] 
H 
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 
145 Of 1966. 
RAMU GOPE V. BIHAR STATE (Shah, J.) 
559 
,~ 
A 
Appeal by special leave from the judgment and order dated 
January 29, 1966 of the Patna High Court in CrimmaI Appeal 
No. 231 of 1963. 
B 
c 
D 
E 
F 
• ( • 
G 
H 
D. Goburdhun, for the appellants. 
B. P. Jha, for the respondent. 
The Judgment o;f the Court was delivered by 
Shah, J. At mid-day on July 2, 1962, an unlawful assembly 
of about 30 persons armed with lethal weapons made an assault 
upon certain villagers of Mananki Khandha who were engaged in 
agricultural operations and caused injuries to six persons. Budhla 
one of the persons injured died as a result of the injuries, a few 
hours after the assault. 
The seven appellants in this appeal and 
one Harihar Gope were tried before the Additional Sessions Judge, 
Patna, for offences under s. 302 read with ss. 149, 147, 148, 323, 
324, 325 read with 34 and 326 I.P. Code, on the charge that they 
had fonned an unlawful assembly and had committed rioting 
and in prosecution of the common object of the unlawful assem-
bly, viz. to rescue their cattle which had damaged the maize crop 
of Budhia and had on that account been detained by the villagers, 
and to assault persons resisting the rescue, and had caused injuries 
to the victims as a result of which Budhia died. 
The Sessions 
Judge held, relying on the evidence of four witnesses P.Ws. 5, 8, 
12 and 18, that Harihar Gope had caused injuries with a spear to 
Budhia which resulted in her death. He accordingly recorded an 
order of conviction against Harihar Gope of the offence under 
s. 302 I

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