Ram Bilas Singh & Ors Vs. The
State of Bihar  INSC 17 (29 January 1963)
Criminal Trial-Unlawful assembly-Acquittal of
accusedConviction of less than five-Legality of-Indian Penal Code, s. 149.
The facts alleged by the prosecution were
these The first appellant brought with him in a truck to the scene of the
occurrence a mob of 40 to 50 persons including the other two appellants and
four other persons who were acquitted by the trial court. The first appellant
fired a shot from the gun which he was carrying which hit Laldeo Singh on the
chest as a result of which he fell down.
Thereupon none of the acquitted persons fired
from his gun and the shot hit Laldeo Singh again. Thereupon another of the
acquitted persons fired a shot at Laldeo Singh which.
killed him instantaneously. The first
appellant fired two shots at one Deva Singh who was hit on his thigh. The other
two appellants assaulted Deva Singh with lathis of the seven persons charged,
four were acquitted. The appellants were convicted under s. 304 Part II read
with s. 149 of the Indian Penal Code by the trial court. On appeal the High
Court altered their conviction into one under s. 326 read with s. 149 of the
Indian Penal Code but maintained the convictions under S. 147 and s. 426 of the
Indian Penal Code. It was contended before the Supreme Court that as there was
no appeal before the High Court against the acquittal of the four acquitted
persons who were alleged to have constituted the unlawful assembly along with the
appellants there could be no finding that there was an unlawful assembly of
which appellants were members and therefore, were liable, for the acts of other
members 776 thereof and that an accused person cannot be held liable
vicariously for the act of an acquitted person.
Held, that even assuming that the fatal injuries
were caused to Laldeo Singh by one of the four acquitted persons, it was not
open to the High Court to hold any of the appellants liable for that act by
resort to s. 149 of the Indian Penal Code.
Held, further that the legal position
deducible from the authorities was (i) that it is competent to a court to come
to the conclusion that there was an unlawful assembly of five or more persons,
and actually convict less than that number for the offence if (a) the charge
states that apart from the persons named, several other unidentified persons
were also members of the unlawful assembly whose common object was to commit an
unlawful act and the evidence led to prove this is accepted by the court ; (b)
or that the first information report and the evidence shows such to be the case
even though the charge does not state so ; (c) or that though the charge and
the prosecution witnesses named only the acquitted and the convicted accused
persons there is other evidence which discloses the existence of named or other
persons provided that in cases (b) and (c) no prejudice has resulted to the
convicted person by reason of the omission to mention in the charge that the
other unnamed persons had also participated in the offence.
Harchandra v. Rex. I.L.R. (1951) 2 All. 62,
To pandas v. State of Bombay,  2 S.C.R.
881, R. v. Plummer,  2 K.B. 339, Bharwad Mepa Dana v. State of Bombay,
 2 S.C.R. 172, Kartar Singh v. State of Punjab,  2 S.C.R. 395,
Dalip Singh v. State of Punjab,  S.C.R. 145, Sunder Singh v. State of
Punjab  Supp. 2 S.C.R 634, Mohan Singh v. State of Punjab,  Supp. 3
S.C.R. 848, and Krishna Govind Patil v. State of Maharashtra, [1964) Vol. 1 S.C.R.
678, referred to.
Held, also that the High Court had failed to
determine material questions necessary for property deciding the case, namely
that it had not fully examined the evidence to come, to a definite conclusion
as to whether there was an unlawful assembly or not consisting of persons other
than the acquitted persons and that the High Court had also failed to ascertain
the particular act committed by any member or members of that assembly in
furtherance of the common object as also whether any of the appellants had
participated in, the said incident.
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 73 of 1961.
777 Appeal by special leave from the judgment
and order dated November 3, 1960 of the Patna High Court in Criminal Appeal No.
326 of 1958.
Jai Gopal Sethi, C.L. Sareen and R. L. Kohli,
for the appellants., S.P. Varma, and R. N. Sachthey, for respondent.
1963. January 29. The judgment of the Court
was delivered by MUDHOLKAR, J.-This is an appeal by special leave from a
judgment of the High Court of Patna altering the conviction of the appellants
under s. 304, Part 11 read with s. 149 of the Indian Penal Code into
convictions under s. 326 read with s. 149, I.P.C. but maintaining the sentences
and affirming the convictions under s. 147 and s. 426, I.P.C. as well as the
sentences awarded in respect of those offences.
The prosecution case was that there was a
dispute between Ram Bilas Singh of Shahpore and, his two sons Ram Naresh Singh
and Dinesh Singh on the one hand (appellants before us) and Deva Singh (P. W.
2) and his brothers on the other with respect to a Dochara in a village Dihara.
On April 22, 1957, at about 9.00 a.m. while Deva Singh, along with his brother
Laldeo Singh, the deceased and two other persons Dhunmun Singh (P. W. 4) and
Dasain Hajam were sitting in the Dochara the appellant No. 1 Ram Bilas Singh
arrived there in a truck with a mob of 40 to 50 persons which included the
other two appellants before us, besides four other persons who were acquitted
by the trial court. Ram Bilas Singh is said to have fired from the gun which he
was carrying which hit Laldeo Singh on the chest as a result of which he fell
down, but got up later.
778 Thereupon Ramdeo Singh (acquitted by the
trial court) fired from his gun and the shot hit Laldeo Singh on the chest and
he fell down again. After that, Ram Bilas Singh Gumasta of Dihara (acquitted by
the trial court) fired a second shot' from his gun hitting Laldeo Singh on the
abdomen and killing him instantaneously. The appellant Ram Bilas Singh is
further said to have fired two shots at Deva Singh hitting him on his right
thigh. Appellants Ram Naresh Singh and Dinesh Singh are said to have assaulted
Deva Singh with lathis as a result of which he fell down and thereafter the mob
proceeded to dismantle the Dochara by demolishing its mud pillars, as a result
of which its thatched roof fell down. Having achieved their object, the mob is
said to have left the place, taking away along with them a palang, a bamboo
cot, two quilts, one lantern and one garansa.
The incident attracted it number of villagers
to the spot including jagdish Singh, Bhagwat Singh (since dead) and Ajodhya
Singh. After report was lodged of the incident, the police arrived on the spot,
held the panchnama (inquest) on the body of Lal Deo Singh and followed the'
A starch was made for the seven accused
persons, including the appellants, but it took some time to find them out and
arrest them. Eventually, they were placed before a magistrate who committed
them for trial for offences under s. 148, s. 302 read with s. 149 and s. 426,
I.P.C., the appellant Ram Bilas Singh, Ramdeo Singh and Ram Bilas Singh Gumasta
of Dihara were specifically charged with offences under s. 302, I.P.C. for
having committed the murder of Laldeo Singh. Ram Bilas Singh was further
charged under s. 307 of the Indian Penal Code for attempt to commit the murder
of Deva Singh while Ram Naresh Singh and Dinesh Singh (appellants 2 and 3) were
further charged with offences under s. 323, I.P.C. for assaulting Dhunmun Singh
4). The court of 779 Session acquitted both
Ram Bilas Singh as well as Ramdeo Singh of the offence under s. 302, I. P.C.
and also acquitted all the seven accused persons of the offence under s. 302
read with s. 149, I.P.C. It, however, convicted the three appellants before us
under s. 304, second part, read with s. 149 of the I.P.C. and under ss. 147 and
but acquitted the appellants 2 and 3 of the
offence under s. 323, I.P.C.
Briefly stated, the defence of the three
appellants was that the appellant Ram Bilas Singh was in possession of the
dochara, that it was Laldeo Singh and Deva Singh who threatened to dismantle
the dochara and, therefore, they marched there on the date of the incident at
the head of a mob consisting of 15 or 20 persons carrying with them various
weapons. During the incident, Laldeo Singh and Deva Singh are said to have
flourished their farsis and gandasas while some other members of their party
are said to have used their lathis and spears as a result of which four persons
on the side of the appellants received injuries. In the meantime, in
self-defence, one Ram Lakhan Singh (since deceased) fired a shot from his gun
and ran away. This shot is said to have hit Laldeo Singh and also Deva Singh.
After being injured in this manner, Laldeo Singh is said to have dropped down
dead and then the mob dispersed.
The defence of the appellants that they were
in possession of the dochara and that Laldeo Singh and Deva Singh were the
aggressors has been rejected by both the courts below and Mr. Sethi who appears
for the appellants has not even sought to controvert the finding on that point.
His contention, however, is that the appellants having been acquitted of the
offence under s. 302 read with s. 149, 1. P. C. and appellant No. 1 having been
acquitted of the offences under s. 302 and s. 307, I.P.C. none of them could
780 be convicted under s. 326 read with s. 149, I.P.C. Learned counsel points
out that the clear case of the prosecution in the charge sheet was against
seven named persons i.e., the three appellants before us, Ram Bilas Singh
Gumasta of Dihara, Sudarshan Singh son of Ram Bilas Singh Gumasta, Ramdeo Singh
and Sakal Singh sons of Raghoo Singh and contends that out of these, four
persons having been acquitted, the remaining three persons could not be said to
have been members-of an unlawful assembly and, therefore, they could neither e
convicted under s. 147 I.P.C. nor could they be convicted of any other offences
with the aid of s.
149, I. P.C. All that it was competent for
the court to do was to convict each of them for their individual acts and no
more. Learned counsel further contends that without setting aside the acquittal
of the four alleged associates of the appellants, there could be no finding to
the effect that there was an unlawful assembly of which the appellants were
members and were, therefore, liable for the acts of other members thereof.
Further, it was urged by learned counsel that an accused person cannot be held
liable vicariously for the act of an acquitted person and, therefore, even
assuming that the fatal injuries were caused to Laldeo Singh by one of the four
acquitted persons, it was not open to the High Court to hold any of the
appellants liable for that act with the aid of s. 149, I.P.C.
Learned counsel relied upon a passage in the
judgment of Agarwala J., in Harchanda v. Rex which reads thus :
"Now in a criminal case the burden of
proof is always on the prosecution. It is for the prosecution to establish the
responsibility of the accused for the crime alleged. Having regard to the fact
that there is no appeal against the acquittal of the other five accused before
us, and having regard to the fact that we cannot (1)I.L.R. (1951) 2 All. 62,
781 interfere with the finding of the learned
Sessions judge, so far as it concerns those accused, we cannot hold that either
Durga Das or Sukhbir was responsible for inflicting the incised wounds: and
since it was not the prosecution case that there was some unknown person along with
the accused, who was also holding a sharp-edged weapon,we cannot ascribe the
infliction of the incised wounds to some such unknown person. The result of the
prosecution evidence, taken with the findings of the learned Sessions judge, is
that the prosecution is unable to explain the infliction of the incised wounds.
in my opinion in such a case the accused cannot be held constructively liable
for the infliction of those wounds." There is no doubt that the High Court
has observed in its judgment under appeal that Laldeo Singh was killed -as a
result of one of the shots fired at him by Ram Bilas Singh Gumasta who was
acquitted by the court of Session. We may quote the observations made by it in
this regard. They are "It seems, as I shall show hereafter, the trial
court was greatly prepossessed in favour of Ram Bilas Singh of Dihara, and
therefore it ruled out without disbelieving the evidence, the possibility of
Laldeo Singh having been killed by the third shot fired by Rambilas Singh of
Dihara. It is admitted that the two Rambilas Singh and Ramdeo Singh have each
held a licensed gun empty cartridge.......These guns and the which had been
found by P W. 21 at the place of occurrence were examined by the Fire Arms
Expert The trial court has explained away this very strong piece of evidence of
unimpeachable character, supporting the version of the witnesses 782 that
Rambilas Singh of Dihara had fired one shot from his gun, on a very flimsy
ground." Then the High Court observed that the evidence of the ballistic
expert was disregarded by the Court of Session on flimsy grounds. The point,
however, is that the High Court has come to the conclusion that the shot which
resulted in the death of Laldeo Singh was fired by an acquitted person.
If the view taken by the Allahabad High Court
is correct then it would follow that it was not open to the High Court before
which the acquittal of Rambilas Singh Gumasta was not challenged., to reassess
the evidence with regard to him and hold that it was he who had caused the death
of Laldeo Singh.
We will deal with the decision of the
Allahabad High Court presently, but we must refer to certain decisions of this
court to which reference was made during arguments.
In Topandas v. The State of Bombay (1), this
court has held 'that where four named individuals were charged with having
committed an offence of criminal conspiracy under s. 120-B, I.P.C. and three
out of those four were acquitted of that charge, the fourth accused could not
be held guilty of the offence of criminal conspiracy. In support of this view,
this court ha-, relied upon a passage in Archbald's Criminal Pleading, Evidence
and Practice (33rd edn.p. 201, paragraph 361) which reads thus "Where
several prisoners are included in the same indictment, the jury may find one
guilty and acquit the others, and vice versa. But if several are indicated for
a riot, and the jury acquit all but two, they must acquit those two also,
unless it is charged in the indictment and proved, that they committed the riot
together with some other person not tried upon that (1) 2 S.C.R. 881.
783 indictment. 2 Hawk c. 47 s. 8. And, if
upon an indictment for a conspiracy, the jury acquit all the prisoners but one,
they must acquit that one also, unless it is charged in the indictment, and
proved, that he conspired with some other person not tried upon that
indictment." This court has also quoted with approval a passage from the
judgment in R. v. Plummer (1), which is one of the decisions on which the above
'passage is founded.
In Bharwad Mepa Dana v. State of Bombay (2),
this court had to consider the correctness of the conviction of three persons
under s. 302 read with s. 149 I.P.C. when one other person who had been
convicted by the Sessions judge of a similar offence had been acquitted by the
High Court. It may be mentioned that originally twelve persons were named in
the charge and it was alleged that they had formed an unlawful assembly with
the common object of murdering certain persons. Seven of them were acquitted by
the Sessions judge and only five were convicted under s. 302 read with s. 149,
I.P.C. The High Court, while acquitting one of the five persons, convicted by
the Sessions Judge, held that there were ten to thirteen persons in the
unlawful assembly though the identity of all the persons except four had not
been established, that all these persons had the common object and the common
intention of killing the victims and that the killing was done in prosecution
of the common object of the unlawful assembly and in' furtherance of the common
intention of all. Upon these facts, this court held that the appellants before
it were rightly convicted under s. 302 read with s. 149, I.P.C., and that there
was nothing in law which prevented the High Court from finding that the
unlawful assembly consisted of the four convicted persons and some unidentified
persons, who, (1)  2 K.B 339.
(2)  2 S.C.R. 172, 181.
784 together numbered more than five. This
court further observed :
embark on a discussion as to the legal effect
of the acquittal of nine of the accused persons, except to state that we may
proceed on the footing that the acquittal was good for all purposes and none of
those nine persons can now be held to have participated in the crime so that
the remaining four persons may I be held guilty under s. 149 Indian Penal
Code." It is on the above observations that reliance has been placed by
Mr. Sethi. He contends that the High Court was wrong in observing that Laldeo
Singh was killed as a result of a shot fired at him by Ram Bilas Singh Gumasta
and that he has escaped the charge. of murder as he was acquitted by the
Then, there is the decision of this court in
Kartar Singh v. State of Punjab (1), where this court has held that if the
trial court can legally find that the actual number of members in the
assailants party was more than five, that party will in law constitute an
unlawful assembly even though ultimately three of the accused persons are
convicted. It has further held that it is only when the number of the alleged
assailants is definite and all of them are named and the number of persons
found to have taken part in the incident is less than five, it cannot be held
that they formed an unlawful assembly. Then this court observed "The
acquittal of the remaining named persons must mean that they were not in the
The fact that they were named, excludes the
possibility of other persons to be in the appellant's party and especially when
there be no occasion to think that the witnesses naming all (1)  2 S.C.R.
785 the accused could have committed mistakes
in recognising them." In support of the above conclusion, reliance was
placed by this court upon the decision of this court in Dalip Singh v. State of
In Sunder Singh v. State of Punjab (2) , also
this court has considered the effect of the acquittal of some persons of the
offence under s. 302 read with s. 149, I.P.C. on the conviction of the
remaining persons who numbered less than five. In dealing with this matter it
has observed :
Cases sometimes arise where persons are
charged with being members of an unlawful assembly and other charges are framed
against them in respect of offence committed by such an unlawful assembly. In
such cases; if the names of persons constituting the unlawful assembly are
specifically and clearly recited in the charge and it is not suggested that any
other persons known or unknown also were members of the unlawful assembly, it
may be that if one or more persons specifically charged, are acquitted, that
may introduce a serious infirmity in the charge in respect of the others
against whom the prosecution case may be proved. It is in this class of cases,
for instance, that the principle laid down in the case of Plummer may have some
If out of the six persons charged under s.
149 of the Indian Penal Code along with other offences, two persons are
acquitted, the remaining four may not be convicted because the essential
requirement of an unlawful assembly might be lacking." Upon the facts of
the case before it, this court held that the principle set out in Plummer's
case (3), (1)  S.C.R. 145. (2)  Supp. 2 S.C.R. 654. 663.
(3)  2 K B. 339.
786 and which has been accepted by this court
in Topan Das's case (1), did not apply to the case before it. This court then
proceeded to consider the powers of the court of appeal under s. 423 (1) (a) of
the Criminal Procedure Code and observed that if in dealing with a case before
it, it became necessary for the High Court to deal indirectly or incidentally
with the case against the acquitted accused, it could well do so and there is
no legal bar to such a course.
Upon the view we are taking it is unnecessary
to express any opinion as to whether the interpretation placed in this case
upon the ambit of the powers under s. 423, Cr. P. C. is consistent with the
principle in Plummer's case (2).
Finally, there is the decision of this court
in Mohan Singh v. The State of Punjab (3), where a similar question arose for
consideration. There, this court, after pointing out that where five or more
persons are shown to have formed an unlawful assembly, the mere fact that less
than that number are actually tried for the offence committed by the assembly
and convicted of that offence would not necessarily render their conviction
illegal, because other persons may not have been available for trial or may not
be properly identified or for some other reason. This court has observed :
"............. In such cases, if both
the charge and the evidence are confined to the persons named in the charge and
out of the persons so named two or more are acquitted leaving before the court
less than five persons to be tried, then s. 149 cannot be invoked. Even in such
cases. it is possible that though the charge names five or more persons as
composing an unlawful assembly, evidence may nevertheless show that the
-unlawful assembly consisted of some other persons as well who were not
identified and so not named. In such cases, either the trial court (1)  2
S.C.R. 881. (2)  2 K.B.
(3)  supp. 3 S.C.R. 848, 858.
787 or even the High Court in appeal may be
able to come to the conclusion that the acquittal of some of the persons named
in the charge and tried will not necessarily displace the charge under s. 149
because along with the two or three persons convicted were others who composed
the unlawful assembly but who have not been identified and so have not been
In such cases, the acquittal of one or more
persons named in the charge does not affect the validity of the charge under s.
149 because on the evidence the court of fact is able to reach the conclusion
that the persons composing the unlawful assembly nevertheless were five or more
than five." The decisions of this court quoted above thus make it clear
that where the prosecution case as set out in the charge and as supported by
the evidence is to the effect that the alleged unlawful assembly consists of
five or more named persons and no others, and there is no question of any participation
by other persons not identified or identifiable it is not open to the court to
hold that there was an unlawful assembly unless it comes to the definite
conclusion that five or more of the named persons were members thereof. Where,
however, the case of the prosecution and the evidence adduced indicates that a
number in excess of five persons participated in the incident and some of them
could not be identified, it would be open to the court to convict less than
five of the offence of being members of the unlawful assembly or convict them
of the offence committed by the unlawful assembly with the aid of s; 149, 1. P.
C. provided, it comes to the conclusion that five or more persons participated
in the incident. Again, it is clear from these decisions that when a person has
been acquitted of an offence, his acquittal will be good for all purposes when
the incident in connection with which he was implicated comes up for
consideration before 788 the High Court in appeal by a person or persons who
were tried along with him and convicted of some offence with the aid of s. 149,
I. P. C. Sunder Singh's case (1), has carved out an exception to this rule to
the effect that the High Court can, under s. 423, Cr. P. C. consider
incidentally the question whether the acquitted person was a member of the
unlawful assembly for the purpose of determining the case of the appellants
before it. As already pointed out it is not necessary in this case to say
whether such an exception can be recognised consistently with the principle in
Plummer's case (2) which has so far been uniformly accepted by this court.
We have had occasion to consider recently in
Krishna Govind Patil v. The State of Maharashtra (3), the effect of the
acquittal of person-. who were tried along with the persons convicted of an
offence under s. 302 read with s. 3 t. One of us (Subba Rao. J.) speaking for
the court, has observed "It is well settled that common intention within
the meaning of the section implied a pre-arranged plan and the criminal act was
done pursuant to the pre-arranged plan. The said plan may also develop on the
spot during the course of the commission of the offence;
but the crucial circumstance is that the said
plan must precede the act constituting the offence. If that be so, before a
court can convict a person under s. 302, read with s. 34 of the Indian Penal
Code, it should come to a definite conclusion that the said person had a prior
concert with one or more other persons, named or unnamed,' for committing the
said offence. A few illustrations will bring out the impact of s.34 on
(i) A, B, C and D are charged under s. 302,
read with s. 34 of the Indian Penal Code, (1)  Supp. 2 S.C.R. 654, 663.
(2) 2 K B. 339.
(3  Vol. 1 S.C.R. 678.
789 for committing the murder of E. The
evidence is directed to establish that the said four persons have taken part in
(2) A, B, C and D and unnamed others arc
charged under the said sections. But evidence is adduced to prove that the said
persons, along with others, named or unnamed, participated jointly in the
commission of that offence.
(3) A, B, C and D are charged under the said
sections. But the evidence is directed to prove that A, B, C and D, along with
3 others, have jointly committed the offence.
As regards the third illustration a Court is
certainly entitled to come to the conclusion that one of the named accused is
guilty of murder under s. 302, read with s. 34 of the Indian Penal Code, though
the other three named accused are acquitted, if it accepts the evidence that
the said accused acted in concert along with persons, named or unnamed, other
than those acquitted, in the commission of the offence. In the second
illustration, the Court can come to the same conclusion and convict one of the
named accused if it is satisfied that no prejudice has been caused to the
accused by the defect in the charge. But in the first illustration the Court
certainly can convict two or more of the named accused if it accepts the
evidence that they acted conjointly in committing the offence. But what is the
position if the Court acquits 3 of the 4 accused either because it rejects the
prosecution evidence or because it gives the benefit of doubt to the said
accused? Can it hold, in the absence of a charge as well as evidence, that
though the three accused are acquitted, some other unidentified persons acted
790 conjointly along with one of the named persons? If the Court could do so,
it would be making out a new case for the prosecution: it would be deciding
contrary to the evidence adduced in the case. A Court cannot obviously make out
a case for the prosecution which is not disclosed either in the charge or in
regard to which there is no basis in the evidence. There must be some
foundation in the evidence that persons other than those named have taken part
in the commission of the offence and if there is such a basis the case will be
covered by the third illustration." What has been held in this case would
apply also to a case where a person is convicted with the aid of s. 149, Indian
Penal Code instead of s. 34. Thus all the decisions of this court to which we
have referred make it clear that it is competent to a court to come to the
conclusion that there was an unlawful assembly of five or more persons, even if
less than that number have been convicted by it if (a) the charge states that
apart from the persons named, several other unidentified persons were also
members of the unlawful assembly whose common object was to commit an unlawful
act and evidence led to prove this is accepted by the court; (b) or that the
first information report and the evidence shows such to be the case even though
the charge does not state so, (c) or that though the charge and the prosecution
witnesses named only the acquitted and the convicted accused persons there is
other evidence which discloses the existence of named or other persons
provided, in cases (b) and (c), no prejudice has resulted to the convicted
person by reason of the omission to mention in the charge that the other
unnamed persons had. also participated in the offence.
Now, coming to the Allahabad High Court
decision relied upon, it is sufficient to say that the 791 observations made
therein which have been quoted earlier appear to be in consonance with the principle
in Plummer's case (1), and thus affords support to the argument of learned
Applying the law as set out above, we must
find out whether what the High Court has done in this case is right. In the
first place, though it was vaguely stated by some of the witnesses examined in
the case that 40 or 50 persons took part in the incident including the 7
persons mentioned in the first information report and the charge sheet, the
prosecution case throughout has been that only seven named persons took part in
the incident. Even the first information report of Deva Singh (P. W. 2), one of
the injured persons, mentions only the seven persons who were placed for trial
and no other. There is no suggestion therein that any other persons took part
in the incident.
The Court of Session, however, without
discussing the point and without finding as to how many persons were members
thereof, has come to the conclusion that there was an unlawful assembly, the
common object of which was to dismantle the Dochara and assault Laldeo Singh
and Deva Singh.
The High Court has proceeded more or less on
the assumption that there was an unlawful assembly, only some members of which
were put up for trial, four of whom were acquitted and three convicted. It was
necessary for the High Court to consider whether the statements of some of the
witnesses that the unlawful assembly consisted of many more than seven persons
are true or whether they should be rejected in view of the fact that the first
information report shows that only seven persons who were named therein,
committed the offence. It had also to consider the further question of
prejudice by reason of the defect in the charge. Upon the law as stated by this
court in Mohan Singh's case (2) and in other cases it would have been competent
to the High Court to look into the entire evidence in (1)  2 K.B. 339.
(2)  Supp. 3 S.C.R. 848, 858.
792 the case, oral and documentary, and
consider whether there was an unlawful assembly or not. But it has not done so.
Had the High Court, come to a reasoned
conclusion that there was an unlawful assembly consisting of more than five
persons, including the appellants and some other persons who were unidentified
and convicted the appellants under s. 147 and, with the aid of s. 149, also of
some other offence committed by a member or members of the unlawful assembly
other than the acquitted persons the matter would have stood on a different
footing. But it has not done so. It is clear from its judgment that the High
Court was not satisfied by the manner in which the case had been dealt with by
the Court of Session; but then, it should not have stopped there. Instead, it
should have fully examined the evidence and come to a definite conclusion as to
whether there was an unlawful assembly or not had stated its reasons for coming
to such a conclusion. It should then have ascertained the particular acts
committed by any member or members of that assembly in furtherance of the
common object as also the question whether any of the appellants had
participated in the incident. In the light of its findings on these matters the
High Court should then have proceeded to consider whether all or any of the
appellants could be held liable vicariously for all or any of the acts found to
have been committed by the unlawful assembly or any member or members thereof
other than those alleged to have been committed by persons whose acquittal has
become final. It is a matter of regret that the High Court has failed to
determine questions which it was essential for it to determine. We, therefore,
set aside that judgment and send back the case to the High Court for deciding