Bharwad Mepa Dana & ANR Vs. State of
Bombay  INSC 134 (10 November 1959)
CITATION: 1960 AIR 289 1960 SCR (2) 172
CITATOR INFO :
R 1963 SC 174 (11) R 1968 SC 43 (6) F 1974 SC
323 (6,9) R 1974 SC1567 (6) RF 1975 SC1917 (14) R 1976 SC1084 (12) R 1976
SC2207 (51) MV 1982 SC1325 (69)
assembly-Common objectAcquittal of some, conviction of less than five-Legality
ofCommon intention-No proof who gave fatal blows-Effect ofIndian Penal Code,
1860 (XLV of 1860), ss. 34 and 149.
Twelve named persons, including the two
appellants, were charged with having formed an unlawful assembly with the
common object of committing the murder of three persons.
The Sessions Judge acquitted seven of the
accused but convicted five under s. 302 read with 149 and s. 302 read with 34
of the Penal Code. He sentenced the appellants to death and the other three to
imprisonment for life. On appeal, the High Court acquitted one of the other
three convicted persons but maintained the conviction and sentences of the
appellants and the two others. The High Court 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. The appellants contended
that they having been charged with sharing the common object and common
intention with certain named persons, it was not 173 open to the High Court to
hold that they shared the common object or the common intention with certain
other unspecified persons or with some of the persons who had been acquitted,
and that in the absence of any finding that the appellants gave the fatal blows
they could not be held constructively liable for the murders either under s.
149 or S. 34, Penal Code, for blows given by some unknown persons.
Held, that the appellants had been rightly
convicted. Even though the number of convicted persons was less than five the
High Court could still apply s 149 in convicting the four persons. 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 together numbered more than five. In doing so the High Court did Dot make
out a new unlawful assembly different from that charged ; the assembly was the
same assembly but what had happened was that the identity of all the members
had not been clearly established.
Kapildeo Singh v. The King,  F.C.R.
834, Dalip Singh v. State of Punjab,  S.C.R. 145 and Nay Singh v. State
of Uttar Pradesh, A.I.R. 1954 S.C. 457, applied.
There was no difficulty in the application of
s 34, Penal Code as the number of convicted persons was four and there was a
clear finding that they shared the common intention with some others whose
identity was not established. Even if it was not known which particular person
or persons gave the fatal blows, once it was found that the murders were
committed in furtherance of the common intention of all, each one of such persons
was liable for the murders as though they had been committed by him alone. The
section was intended to meet a case where members of a party acted in
furtherance of the common intention of all but it was difficult to prove
exactly the part played by each of them.
Wasim Khan v. The State of Uttar Pradesh,
 S.C.R. 191, referred to.
Prabhu Babaji Navle v. The State of Bombay,
A.I.R. 1956 S.C.
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 72 of 1959.
Appeal by special leave from the judgment and
order dated the 2nd April, 1959, of the Bombay High Court at Rajkot, in
Confirmation Case No. 2 of 1959 and Crl. Appeal No. 32 of 1959, arising out of
the judgment and order dated February 18, 1959, of the Court of the Sessions
Judge of Madhya Saurashtra, at Rajkot in Sessions Case No. 18 of 1958.
174 Jai Gopal Sethi, B. L. Kohli and K. L.
Hathi, for the appellants.
H. J. Umrigar, D. Gupta for R. H. Dhebar, for
1959. November 10. The Judgment of the Court
was delivered by S. K. DAS J.-This is an appeal by special leave. The two
appellants are Mepa Dana and Vashram Dana. The learned Sessions Judge of Rajkot
tried them along with ten other persons for various offences under the Indian
Penal Code, including the offence of murder punishable under section 302 read
with ss. 149 and 34 of the Indian Penal Code. Of the twelve persons whom he
tried, the learned Sessions Judge acquitted seven. He convicted five of the
The two appellants were sentenced to death,
having been found guilty of the offence under section 302 read with s. 149, as
also s. 302 read with s. 34, Indian Penal Code; the other three convicted
persons were sentenced to imprisonment for life. No separate sentences were
passed for the minor offences alleged to have been committed by them.
All the convicted persons preferred an appeal
to the High Court of Bombay. There was also a reference by the Sessions Judge
under s. 374, Code of Criminal Procedure, for confirmation of the sentence of
death passed on the two appellants. The appeal and the reference were heard
together and by Its judgment pronounced on April 2, 1959, the High Court
affirmed the conviction of four of the convicted persons, namely, the two
appellants and two other convicted persons who were accused nos. 1 and 11 in the
trial court. The High Court allowed the appeal of accused no. 8 and set aside
the conviction and sentence passed against him. It is worthy of note here that
as a result of the judgment pronounced by the High Court, the number of
convicted persons came down to four only. We are emphasising this circumstance
at this stage, because one of the arguments advanced on behalf of the
appellants with 175 regard -to their convictions for the offence punishable
under S. 302 read with S. 149 centres round this fact. We bad earlier stated
that the number of persons whom the learned Sessions Judge tried was twelve
only. However, the prosecution case which we shall presently state in a little
greater detail was that there were altogether thirteen accused persons who constituted
the unlawful assembly and committed the offences in question in prosecution of
the common object of the assembly or in furtherance of the common intention of
all. One of them, however, was a juvenile and was tried by a Juvenile Court
under the Saurashtra Children Act, 1956. That is why the number of accused
person,; before the learned Sessions Judge was twelve only. The case record
before us does not disclose the result of the trial in the Juvenile Court,
though it has been stated on behalf of the appellants that that trial ended in
It, is necessary now to state what the
prosecution case against the twelve accused persons was. There is a village
called Nani Kundal within police station Babra in the district of Madhya
Saurashtra. In that village lived one Shavshi, who had four sons called Kurji
Harji, Mitha, and Virji. One Dana Bharwad, described as accused no. 1 in the
trial court, also lived in the same village. He had three sons called Amra,
Mepa and Vashram. We have already stated that Mepa and Vashram are the two
appellants before us. In the beginning of the year 1958 Amra was murdered and
Harji and Mitha were tried for that murder by the learned Sessions Judge of
Rajkot. He, however, acquitted them on May 14, 1958. This caused dissatisfaction
to Dana and his two sons Mepa and Vashram. On July 14,1958, Harji Mitha, and
Virji went to a place west of the village where they had a cluster of huts.
This place was north of another cluster of huts belonging to Dana. When the
aforesaid three brothers were engaged in some agricultural operations, they
were, attacked by a mob of persons led by the two appellants who were armed
with axes. Harji was pounced upon and felled by blows. He managed to get up and
ran towards the 176 village. Simultaneously, Mitha and Virji also ran more or
less in the same direction. The three brothers were, however, pursued. Kurji,
the fourth brother, and other relatives of Shavshi ran towards the place of
Kurji was the first to arrive and the
prosecution case was that Kurji was struck down by the two appellants and other
members of the unlawful assembly. He died then and there. Harji was then
assaulted for the second time and he also fell down and died then and there.
Lastly, Mitha was surrounded and assaulted. He also fell down and died there.
The mother of the four brothers, Kurji,
Harji, Mitha and Virji, as soon as she came to know of the death of three of
her sons, arrived at the place of occurrence. She then went to the shop of one
Kalidas, a leading resident of the village. There she met one Arjan who was a
village chowkidar. Arjan was informed of what had happened and he went to
village Barwala, where a police out-post was situated. He informed one Anantrai
who was in-charge of that out-post. Anantrai prepared an occurence report which
he sent to the officer-in-charge of Babra Police Station.
This was the first information of the case.
Babra is situate at a distance of about thirteen or fourteen miles from village
Nani Kundal, and the Sub-Inspector of Police arrived at the village at about
10-45 p.m. Thereafter, an investigation was held, and the thirteen accused
persons were sent up for trial.
Substantially, the defence of the appellants
was that they had been falsely implicated out of enemity and had nothing to do
with the murder of the three brothers, Kurji, Harji and Mitha. The case of
Dana, accused No. 1, was that on the day in question his son Mepa was pursued
and attacked by Harji, Mitha and Kurji. Thereupon, Dana went there to save his
son Mepa and received an injury on his left band. He then ran away from the
scene of occurrence. He disclaimed any knowledge of the attack on Kurji, Harji
The prosecution examined ten eye-witnesses.
Of these seven were relatives of Shavshi and three, 177 namely, Nagji, Bhura
and Dada, were independent persons.
The learned Sessions Judge accepted
substantially the evidence of the ten eyewitnesses, but decided not to act on
the testimony of the relatives of Shavshi unless there was other independent
corroborative evidence or circumstance.
Proceeding on that basis, the learned
Sessions Judge found that the three independent witnesses Nagji, Bhura and
Dada, corroborated the evidence of the relatives with regard to four of the
five accused persons, namely, the two appellants and accused nos. 1 and 11. As
against accused no. 8, the learned Sessions Judge relied upon the evidence
relating to the discovery of an axe, which was stained with human blood, as a
corroborative circumstance. In the result he convicted the two appellants and
accused nos. 1, 8, and 11.
The High Court was not satisfied with the
evidence against accused no. 8. As to the common object or common intention of
the persons who constituted the unlawful assembly, it said:
"From the prosecution evidence, there is
no doubt whatsoever that more than five persons were operating at the scene of
offence, though the identity of all the persons has not been established except
the accused nos. 1, 2, 3 and 11. There is no doubt on the prosecution evidence
that more than five persons, i.e., as many as ten to thirteen persons took part
in this offence. Therefore, there is no doubt that these persons had formed
themselves into an unlawful assembly.
From the prosecution evidence, it is clear
that the common object of these persons was to commit murders and that these
persons entertained common intention to murder the victims.
There is also evidence to show that all these
persons carried heavy axes. Therefore, there is no doubt that the offences
under sections 147, 148, 302/149 and 302/34 of the Indian Penal Code had been
committed and that the accused nos. 1, 2,3 and 11 are liable to be convicted
for these offences." We proceed now to state the arguments which have been
advanced before us on behalf of the appellants. The main argument is that the
conviction of the 23 178 appellants for the offence of murder, with the aid of
either s. 149 or s. 34, Indian Penal Code, is bad in law and cannot be
sustained. Learned counsel for the appellants has submitted that his clients
are liable to be convicted and punished for the individual acts of assault
which are proved against them; but in the circumstances of this case, they
cannot be convicted of the offence of murder. This argument learned counsel had
developed in two different ways.
He has pointed out that the prosecution put
up a definite case that thirteen named persons formed an unlawful assembly, the
common object of which was to kill the three brothers earlier named; twelve of
them were tried by the learned Sessions Judge who acquitted seven and the High
Court acquitted one more. This brought the number to four, but the High Court
found that there were more than five persons, that is as many as ten to
thirteen persons who took part in the offence. This finding, so learned counsel
has submitted, amounts to this; the four convicted persons formed an unlawful
assembly , with the necessary common object, either with some of the acquitted
persons or with certain unspecified persons, who were never put on trial on the
same indictment and about whom no indication was given by the prosecution
either in the charge or in the evidence led. His contention is that in view of
the finding of the High Court which resulted in the number of convicted persons
falling below the required number of five, it was not open to the High Court to
make out a case of a new unlawful assembly consisting of the four convicted
persons and certain unspecified persons; nor could any of the acquitted persons
be held, in spite of the acquittal, to be members of an unlawful assembly, for
their acquittal is good for all purposes and the legal effect of the acquittal
is that they were not members of any unlawful assembly. Thus, learned counsel
has contended that the conviction of the appellants for the offence of murder
with the aid of s. 149, Indian Penal Code, is bad in law. This is the first of
the two ways in which he has developed his argument.
179 His second argument wider in scope and
embraces both ss. 149 and 34, Indian Penal Code, and it is this. He has pointed
out that though the finding is that the two appellants assaulted Harji and
Kurji with their axes, there is no finding as to who gave the fatal blows to
Kurji had as many as four ante mortem
injuries, three on the neck and head and one on the arm. His death was due to a
depressed fracture of the right temporal bone and a fissured fracture of the
parietal and occipital bones. Harji had has many as thirteen ante mortem
injuries including a fracture of the skull. So far as Mitha was concerned, he
had sustained a fracture of the frontal bone of the left side of his head, a
crushed fracture of the nose and socket of the left eye, and a fracture of the
maxillar bones on both sides; in other words, Mitha's skull was practically
smashed in. The contention of the learned counsel is that in the absence of any
finding that the appellants or the convicted persons alone caused the aforesaid
fractures by the blows given by them, the appellants cannot be held
constructively liable, either under s. 149 or s. 34, Indian Penal Code, for
blows given by some unknown person when the prosecution made no attempt to
allege or prove any such case. It is argued that even assuming that the
convicted persons, four in number, had the necessary common intention of
killing the three brothers, none of them would be liable under s. 34 Indian
Penal Code, for the acts of an unknown person or persons who might have given
the fatal blows unless the prosecution alleged and proved that the criminal act
was done in furtherance of the common intention of the convicted persons and
those others whose identity was not known; and where thirteen named persons are
said to have committed a murder in furtherance of the common intention of all,
it is not open to the prosecution to say, on acquittal of nine of those
persons, that the remaining four committed the murder merely on the finding
that they bad a common intention but without any proof whatsoever that they or
any of them gave the fatal blows.
180 The two arguments overlap to some extent,
though the first is applicable specifically in respect of the charge under s. 149,
Indian Penal Code, and the second to both ss. 149 and 34, Indian Penal Code. We
shall presently consider these arguments. But before we do so, it is necessary
to state that much confusion could have been avoided in this case if the two
charges-one under s. 149 and the other under s. 34were not mixed up: the
difference between the two sections has been pointed out in several previous
decisions of this Court, and though we consider it unnecessary to reiterate
that difference, we must state that the difference should have been kept in
mind and the two charges should not have been rolled up into one as was done in
the present case.
We are satisfied, however, that no prejudice
was caused and the appellants have had a fair trial.
To go back to the arguments urged on behalf
of the appellants; it is necessary, first, to understand clearly what the
finding of the final Court of fact is. We have earlier quoted that finding in
the very words in which the learned Judges of the High Court expressed it. That
finding stated-(1) there was no doubt that more than five persons constituted
the unlawful assembly, though the identity of all the persons except those four
who were convicted was not established ; (2) that the total number of persons
constituting the unlawful assembly was ten to thirteen; (3) that all the ten to
thirteen persons had the common object and common intention of killing Kurji,
Harji and Mitha; and lastly (4) that the killing was done in prosecution of the
common object of the unlawful assembly and in furtherance of the common
intention of all, and the appellants took a major part in the assault on two of
the brothers, Kurji and Harji. The question that arises now is this: in view of
these findings of the High Court, can it be said that the High Court wrongly
applied s. 149, because the number of convicted persons was only four? We think
that the answer must be in the negative. We may say at once that the High Court
does not find that the unlawful assembly consisted of the four convicted
persons and some of the 181 acquitted persons. That clearly is not the finding
of the High Court, because it says that " the identity of all the persons
has not been established except that of accused nos.
1, 2, 3 and 11. " The finding of the
High Court really means that the four convicted persons and some other persons
whose identity was not established, totalling ten to thirteen in number,
constituted the unlawful assembly.
Therefore, it is unnecessary in the present
case to 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 be held guilty under s. 149, Indian Penal Code.
That does not, however, conclude the matter.
Nothing in law prevented the High Court from finding that the unlawful assembly
consisted of the four convicted persons and some unidentified persons, who
together numbered more than five.
We have advisedly said, ',Nothing in law
etc"; for, whether such a finding can be given or not must depend on the
facts of each case and on the evidence led. It is really a question of fact to
be determined in each case on the evidence given therein. Learned counsel for
the appellants has argued before us, as though it is a matter of law, that it
was not open to the High Court to come to the finding to which it came, because
the prosecution case was that thirteen named persons constituted the unlawful
We are unable to accept this argument as
correct. We do not think that there was any such legal bar as is suggested by
learned counsel, though there may be cases where on the facts proved it will be
impossible to reach a finding that the convicted persons, less than five in
number, constituted an unlawful assembly with certain other unspecified persons
not mentioned in the charge. That consideration apart, any mere error, omission
or irregularity in the charge will not invalidate the finding in this case as
-a matter of law. So far as the finding can be said to have travelled beyond
the letters of the 182 charge, the appellants have not proved any prejudice,
and in the absence of prejudice no complaint can now De made of any defect in
Learned counsel has then submitted that the
finding of the High Court makes out a case of a new unlawful assembly which is
different from that suggested by the prosecution case. We do not think that
that view is correct either. The assembly is the same assembly, but what has
has happened is that the identity of all the members of the unlawful assembly
has not been clearly established though the number has been found to be more
than five. We do not think that it is unusual for witnesses to make mistakes of
identity when a large number of persons are concerned in committing a crime; in
any event it is a question of fact to be decided in each case and is not a
question of law.
Much reliance has been placed by learned
counsel for the appellants on the following observations in Archbold's Criminal
Pleading, Evidence and Practice (Thirty-fourth edition, pp. 200-201).
"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 indicted 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 indictment." Similar observations occur in Hawkins's Pleas
of the Crown (2 Hawk. c. 47, s. 8) That on an indictment for a riot against
three or more, if a verdict acquit all but two, and find them guilty; or on an
indictment for a conspiracy, if the verdict acquit all but one, and find him
guilty, it is repugnant and void as to the two found guilty in the first case,
and as to the one found guilty in the second, unless the indictment charge them
with having made such a riot or conspiracy simul cum aliis juratoribus ignotis;
for otherwise it appears that the defendants are found guilty of -an offence
183 whereof it is impossible that they should be guilty; for there can be no
riot where there are no more persons than two, nor can there be a conspiracy
where there is no partner. Yet it seems agreed, that if twenty persons are
indicted for a riot or' conspiracy, and any three found guilty of the riot, or
any two of the conspiracy, the verdict is good." We do not think that these
observations help the appellants in the present case. They relate to the effect
of a verdict of the jury at common law, which may be either (a) general, or (b)
partial or (c) special. In a special verdict, the facts of the case are found
by the jury, the legal inference to be derived from them being referred to the
court. If, therefore, the jury find only one man guilty of conspiracy and two
guilty of a riot, they are really finding the defendants (to use the
phraseology of Hawkins) " guilty of an offence whereof it is impossible
that they should be guilty; for there can be no riot where there are no more
persons than two, nor can there be a conspiracy where there is no
partner." Obviously, the.
observations refer to those cases where the
verdict of the jury does not and cannot imply that there were more than one
conspirator, or more than two persons in a riot. This is made clear by the
further statement that " if twenty persons are indicted for a riot or
conspiracy, and any three found guilty of the riot, or any two of the
conspiracy, the verdict is good." The legal position is clearly and
succinctly put in Harris's Criminal Law (Nineteenth edition, p. 474.) "
When several persons are joined in one indictment the jury may convict some and
acquit others. In some cases, however, the acquittal of one may render the
conviction of the other or others impossible; in conspiracy, for example, at
least two of the prisoners must be convicted, and in riot at least three,
unless those convicted are charged with having been engaged in the conspiracy
or riot with some other person or persons not tried upon that indictment."
In Topan Das v. The State of Bombay (1), this Court proceeded on the same
principle, viz., that according to (1)  2 S.C.R. 881.
184 the definition of criminal conspiracy in
s. 120-A,Indian Penal Code, two or more persons must be partners to such an
agreement and one person alone can never be held guilty of criminal conspiracy
for the simple reason that he cannot conspire with himself. That was acase in
which four named individualswere charged with having committed criminal
conspiracy, but three were acquitted of the charge. The distinction between
that case and the case under our consideration lies in this: in Topan Das's
case it was not possible to find, after the acquittal of three persons out of
the four charged, that there was any partner to the conspiracy whereas in the
case before us the finding is that there were ten to thirteen persons who
constituted the unlawful assembly with the necessary common object but the
identity of four only has been established.
The point under discussion arose in the
decisions of the Allahabad High Court, viz., Harchanda v. Rex (1), and Gulab v.
State (2), the latter over-riding the earlier decision.
The decision in Gulab's case proceeded,
however, on the footing that it was open to the appellate court to find that
some of the acquitted persons had been wrongly acquitted, although it could not
interfere with such acquittal in the absence of an appeal by the State Government-an
aspect regarding which it is not necessary to say anything in this case.
There are two other decisions, one of the
Federal Court and the other of this Court. In Kapildeo Singh v. The King (3),
the prosecution case was that 60 or 70 men constituted the unlawful assembly,
but the appellant in that case was charged with thirteen others -with having
committed certain offences in furtherance of the common object of the unlawful
assembly. The appellant was found guilty, but the thirteen others who were
charged along with the appellant were acquitted as they were not properly
identified. One of the contentions raised in the Federal Court was that in all
fourteen persons having been charged with rioting and thirteen of them having
been acquitted, (1) (1951) I.L.R. 2 All. 62.
(2) (1952) I.L.R. 2 All. 726.
(3) (1950) F.C.R. 834.
185 it could not be hold that there was any
unlawful assembly of five or more pet-sons whose common object was to commit an
offence. With regard to this contention, it was observed at pp. 837-838 :
" The essential question in a case under
s. 147 is whether there was an unlawful assembly as defined in s. 141, I. P.
C., of five or more than five persons. The
identity of the persons comprising the assembly is a matter relating to the
determination of the guilt of the individual accused, and even when it is
possible to convict less than five persons only, s. 147 still applies, if upon
the evidence in the case the court is able to hold that the person or persons
who have been found guilty were members of an assembly of five or more persons,
known or unknown, identified or unidentified. In the present case, there is
such a finding and that concludes the matter." We consider that these
observations -apply with equal force in the present case, and we do not think
that the distinction sought to be made by learned counsel for the appellant on
the basis that in Kapildeo's case (1), the prosecution allegation was that
there were 60 or 70 men in the unlawful assembly, makes any difference in the
legal position. The same view was expressed again by this Court in Dalip Singh
v. State of Punjab (2):
" Before section 149 can be called in
aid, the court must find with certainty that there were at least five persons
sharing the common object. A finding that three of them 'may or may not have
been there' betrays uncertainty on this vital point and it consequently becomes
impossible to allow the conviction to rest on this uncertain foundation.
This is not to say that five persons must
always be convicted before section 149 can be applied. There are cases and
cases. It is possible in some cases for Judges to conclude that though five
were unquestionably there the identity of one or more is in doubt. In that
case, a conviction of the rest with the aid of section 149 would be good. But
if (1)  F.C.R. 834.
24 (2)  S.C.R. 145,150.
186 that is the conclusion it behoves a
court, particularly in a murder case where sentences of transportation in no
less than four cases have been enhanced to death, to say so with unerring
certainty." The same view was reiterated in Nar Singh v. State of Uttar
Pradesh (1). We have stated earlier what the finding in the present case is: it
is a clear finding-a finding with certainty-that the number of persons who constituted
the unlawful assembly was more than five, though the identity of four only has
been established; and the killing was done in prosecution of the common object
of the entire unlawful assembly Therefore, we see no serious difficulty in
applying s. 149, Indian Penal Code, in the present case.
As to the application of s. 34 Indian Penal
Code, we consider that the legal position does not admit of any doubt or
difficulty. Four persons have been convicted of murder on the finding that all
of them and some others had the common intention of killing three brothers; the
appellants took part in the assault in furtherance of the common intention, and
it is riot disputed that the common intention was achieved by murdering the
three brothers, Kurji, Barji and Mitha. The number of convicted persons is more
than one, and it does not fall below the required number. What then is the
difficulty in applying s. 34, Indian Penal Code? Learned counsel says: "We
do not know who gave the fatal blows ". We accept the position that we do
not know which particular person or persons gave the fatal blows; but once it
is found that a criminal act was donein furtherance of the common intention of
all, each of such persons is liable for the criminal act as if it were done by
him alone. The section is intended to meet a case in which it may be difficult
to distinguish between the acts of individual members of a party who act in
furtherance of the common intention of all or to prove exactly what part was
taken by each of them. The principle which the section embodies is participation
in some action with the common intention of committing a crime ; once such
participation is established, s. 34 is at once (1) A I.R 1959 S.C. 457,459.
187 attracted. In the circumstances, we fail
to see what difficulty there is in applying s. 34, Indian Penal Code, in the
present case. In the course of his arguments learned counsel has suggested that
some of the acquitted persons might have given the fatal blows and as they have
been acquitted, the appellants cannot be constructively liable for their acts.
We do not think that this a correct way of looking at the matter. We are
proceeding in this case on the basis that the acquittal is good for all
purposes, and we cannot bring in the acquitted persons for an argument that
they or any of them gave the fatal blows.
It is necessary to refer now to two decisions
of this Court with regard to the application of s. 34, Indian Penal Code.
Learned counsel for the respondent has relied
on Wasim Khan v. The State of Uttar Pradesh (1). In that case the High Court
found that the appellant along with two others committed the offences of
robbery and murder; but the two co-accused were acquitted. It was observed that
on the finding of the High Court the appellant could be convicted by the
application of s. 34, even though the two co-accused of the appellant were
acquitted. That was a case in which the number came down to one by the
acquittal of the two coaccused. The present case is a much stronger case in the
matter of the application of s. 34, because the number of convicted persons who
participated in the criminal act in furtherance of common intention of all is
four. In Prabhu Babaji Navle v. The State of Bombay(2) the appellant along with
four others was charged under s. 302 read with s. 34, Indian Penal Code; four
others were acquitted. The question was if the appellant could be convicted
under s. 34 after the acquittal of four others. Here again the number fell to
one, that is, below the required number. It was observed:
If these four persons are all acquitted, the
element of sharing a common intention with them disappears; and unless it can
be proved that he shared a common intention with actual murderer or (1) 
(2) A.I.R. 1956 S.C. 51.
188 murderers, he cannot be convicted with
the aid of s. 34.
of course he could have been charged in the
alternative for having shared a common intention with another or others
unknown. But even then, the common intention would have to be proved either by
direct evidence or by legitimate inference. It is impossible to reach such a
conclusion on the evidence in this case once the co-accused are eliminated
because the whole gravamen of the charge and of the evidence is that the
appellant shared the common intention with those other four and not with others
who are unknown." This decision can be distinguished on two grounds: (1)
the number fell below the required number and (2) it was not possible to reach
a conclusion in that case that the appellant shared the common intention with
another or others unknown. In our case the number of convicted persons is four
and each of them had the necessary common intention ;
secondly, there is a clear finding that they
shared the common intention with some others whose identity was not
established. The decision in Prabhu Babaji Navle (1) does not, therefore, stand
in our way.
Lastly, there is the question of sentence.
Learned counsel for the appellants has submitted that the lesser sentence
should be imposed, and he has given three reasons in support of his submission:
(1) that Amra, brother of the appellants, was murdered earlier in the year; (2)
that the father of the appellants was also convicted but was not given capital
punishment, though he must have influenced the appellants;
and (3) there is no finding that the
appellants caused the fatal injuries. We have examined the evidence and it
shows clearly enough that the appellants played a leading part and, so far as
Kurji and Harji were concerned, took a major part in assaulting them with heavy
axes. The High Court also carefully considered the sentence imposed on the
appellants and came to the conclusion that having regard to the enormity of the
crime, viz., three premeditated and cold-blooded (1) A.I.R. 1956 S.C. 51 189
murders and the part played by the appellants, it would not be justified in
imposing the lesser sentence. We see no good reasons for differing from the
High Court and interfering with the sentence.
For the reasons given above, the appeal fails
and is dismissed.