Mizaji and Another v State of Uttar Pradesh

Facts

On 27 July 1957, five accused — Tej Singh, his son Mizaji, and three others — came armed (Tej Singh with a spear, Mizaji with a pistol concealed in his dhoti, others with lathis) to forcibly take possession of a sugarcane field. When the landowner Rameshwar and his party protested and refused to leave, Tej Singh ordered Mizaji to fire, and Mizaji shot Rameshwar dead. The trial court convicted Mizaji of murder and sentenced him to death, the others to life imprisonment under Section 302/149 IPC, with concurrent sentences for rioting.

Issues

• Whether the murder was committed in prosecution of the common object of the unlawful assembly, or was such that the members knew to be likely to be committed in prosecution of that common object, so as to attract Section 149 IPC.
• Whether the members of the assembly other than the actual shooter could be held vicariously liable for the murder under Section 149 IPC.

Arguments

The prosecution contended that the common object was to take forcible possession of the field at any cost, and that the arms carried and the threatening conduct of the assembly showed its members knew that murder was a likely consequence in pursuit of that object. The defence contended that the others had no knowledge that Mizaji carried a pistol or that murder would be committed, so the common object did not extend to causing death and Section 149 could not fasten murder liability on all.

Held

The Supreme Court upheld the convictions and sentences. It held that the common object of the assembly was to take forcible possession of the field at any cost, and that the nature of the arms carried and the conduct of the members showed they knew that murder was likely to be committed in prosecution of that object. The Court emphasised that the distinction between the two parts of Section 149 cannot be ignored or obliterated: even if causing death was not the common object itself, the offence fell within the second part because the members knew it to be likely. The Court observed that the word 'know' does not mean a mere possibility, such as might or might not happen, but a more definite state of mind, which on these facts was established. Mizaji's momentary hesitation before firing was held to be no mitigation, since carrying the loaded pistol showed a preparedness to use it.

Ratio decidendi

Under the second part of Section 149 IPC, every member of an unlawful assembly is guilty of an offence — even one not falling within the common object itself — if the members knew that offence to be likely to be committed in prosecution of the common object; such knowledge must be more than a bare possibility and may be inferred from the arms carried and the conduct of the assembly.

Significance

A leading authority on the scope of constructive/vicarious liability under Section 149 IPC, especially its often-overlooked second part ('which the members of that assembly knew to be likely'), and on the meaning of 'knew'. It is repeatedly cited and followed for the proposition that the two limbs of Section 149 are distinct. The same principle now sits under Section 190 BNS, 2023, which re-enacts Section 149 IPC in substantially identical terms (offence committed in prosecution of the common object, or which the members knew to be likely), so the case remains good law for interpreting BNS Section 190.

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