STATE OF BIHAR versus MATHU PANDEY & ORS.

Citation: [1970] 1 S.C.R. 358 · Decided: 23-04-1969 · Supreme Court of India · Bench: S.M. SIKRI · Disposal: Dismissed
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Judgment (excerpt)

358 
STATE OF BIBAR 
v. 
MATHU PANDEY .t ORS. 
Ap~il 23, 1969 
(S. M. SiKRl, R. S. BACHAWAT AND V. IlutASWAMI, JJ.] 
Jndia11 Penal Codt, 1860, s. 302 rtad with s. 149 and Ss. 103, 99-
Parry of accused persons preventing theft from land by another group-
Causing death of two persons In attacking party-I/ unlawful tmembly 
and committed offence uruler s. 302 read with s. 149-Whether entitled l-0 
exercise right of private defence undtr s. 103 and causing deaJh. 
In proceedings against the accmed respondents the prosecution c:uo 
wu that on certain land belonging to one B where some of his men wae 
pthering fruits, the respondents, armed with bhallas, lathis, etc., attacked 
these men killing two of them and inj~ others. Thc trial coon con-
victed the respondents under s. 302 read wuh s. 149 I.P.C. of the murder 
of the I\\ o deceased persons and of offences for inflicting injuric3 on other 
persons. 
The respondent<" appeal 10 · rhe High Court was allowed and 
that C.urt set aside all the convictions and sentences. The Hi&h Court 
found that the land in question was in the possession of one of the respon-
dents and that on !he date of occurrence, rhe members ot the prooccutioo 
party including the murdered victims committed thefto of fruits on the 
land and that the respondents had !he right df private defence of property 
against rhe theft; the theft of the fruits wu committed under such circuma-
tances as might reasonably cause apprehension that death or grievous 
bodily h!!T! would be the consequence if the ri¥ht of private defence wu 
not exercised. Accordingly, the reopondenlJ' ngbt of private defence <Ii 
property extended under s. 103 1.P.C. to voluntarily causing dcarh of the 
two murdered victims subject to the r .. trictlons mentioned in s. 99. 
In appeal to this Ol'ut against the acquittal of the respondents, 
it 
was contended that they were m•mbers of an unlawful assembly pros.-:Jt-
lng the common object of forcibly 
preventin' the two deceased from 
collectini fruit from the land in queatioo and 1f necessary in causing the 
murder of the said two persons for the purpose; that some of them ca111-
ed the murder of the two victims and .that thereby all of them committed 
olfences under s. 302 read wirh s. 149. 
HELD : The re•pondenrs could 001 be convicled under s. 302 read with 
s. 149 J.P.C .. nor w•s it possible to convict them under '· 302 read with 
'· 34. 
B 
c 
D 
F 
In orJer to attract the provisions of s. 149 the prosecutiou must estab-
G 
Iish that there was an unlawful assembly and that the crime was commit-
ted in prosecution of !he common object of the ...embly. Under the 
fourth clause of s. 141 an assembly of five or more persons is an unlaw-
ful assembly if the common object of its members is to enforce any right 
<>r supposed right by means of criminal foree or show of criminal force 
to any person. 
Sec1ion 141 must be read with S.. 96 to 106 dealing with 
the ri~ht of private de'fence. 
Under '· 96 nolhin& is an olfeoce whicb is 
H 
done rn the exercise of the right of private defence. The a.ssertiOll of a 
risJit of private defence within the limits prescribed by law cannot fall 
within the expression "to enforce any right 
or suppooed right" in 
the 
founh clause of s. 141. [362-C] 
A 
B 
c 
D 
E 
F 
G 
H 
BIHAR v. MATHU PANDEY (Bachawa~. J.) 
359 
As it bad been fOllDd in the present case that the land in question was 
in the possession of one of the respondents, the object of the respon .. 
dents' party was to prevent the commission of theft of the fruits in exer-
cise of their right <if. private defence of property. This object was not un. 
lawful. Nor was it possible to say that their common object was to kill 
the two deceased victims. Those who killed them exoeeded the right of 
private defence and may be individually held responsible for the murd~rs. 
But the murders were not committed in prosecution of the common obiect 
of the assembly or were such as the members of the assembly knew to 
be likely to be committed in prosecution of the common object. The 
accused respondents could not be made constructively responsible for 
the murders under s. 302 read with s. 149. [363-B] 
Kapildeo Singh v. The King, [1949-50] F.C.R. 834; Kishori Prsad & 
Ors. v. State of Bihar Cr. Appeal No. 191 of 1966 deed. on 5-12-1968; and 
Gurudittamal, v. State of U;P. A.I.R. 1965 S.C. 257; referred. 
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 
203 of 1966. 
Appeal by special leave from the ju
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