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PETITIONER: MOHAN SINGH

       Vs.

RESPONDENT: STATE OF PUNJAB

DATE OF JUDGMENT: 15/03/1962

BENCH: GAJENDRAGADKAR, P.B. BENCH: GAJENDRAGADKAR, P.B. AIYYAR, T.L. VENKATARAMA SINHA, BHUVNESHWAR P.(CJ) WANCHOO, K.N. AYYANGAR, N. RAJAGOPALA

CITATION:  1963 AIR  174            1962 SCR  Supl. (3) 848  CITATOR INFO :  D          1963 SC1413  (7)  R          1972 SC 254  (4)  D          1974 SC 323  (9)  RF         1975 SC1917  (14)  RF         1976 SC1084  (12,15)  R          1976 SC2207  (51)

ACT: Criminal    Liability-Members    of    unlawful    assembly- Maintainability  of  conviction-Common  object  and   common intention-Distinction-Alteration of conviction-Indian  Penal Code 1860 (Act 45 of 1860). ss. 302, 149, 34.

HEADNOTE: The  two appellants, who were tried with three others,  were convicted  under s. 302 read with s. 149 and s. 147  of  the Indian Penal Code.  Two of these five persons tried together were  acquitted.  In the charge these five  accused  persons and  none  others  were mentioned as  forming  the  unlawful assembly  and the evidence led in the case was  confined  to them  alone.   The  facts proved in  the  case  unmistakably showed  that  the  two appellants and  the  other  convicted person,  who inflicted the fatal blow, were actuated by  the common intention of fatally assulting the deceased.  It  was contended   in  this  Court  that  the  conviction  of   the appellants under s. 302 read with s. 149 of the Indian Penal Code was not sustainable in law in view of the acquittal  of two  of  the five accused persons who were alleged  to  have formed the unlawful assembly. Held,  that the contention must prevail and  the  conviction altered  to one under s. 302 read with s. 34 of  the  Indian Penal Code. Section  149  of Indian Penal Code prescribes  vicarious  or constructive criminal  liability for members of an unlawful 849 assembly  which  under s. 141 must consist of five  or  more persons.  Consequently, as soon as, in the present case, two of  accused persons were acquitted, s. 141 ceased  to  apply and s.149 became inoperative.

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In  dealing with the applicability of s. 149 of  the  Indian Sit Penal Code, one has to remember the several’  categories of  cases  that  come  up before  the  courts  for  decision thereunder. Dalip  Singh  v.  State of Punjab,  [1954]  S.C.R.  145  and Bharwad  Mepa Dana v. State of Bombay, [1960] 2 S.C.R.  172, referred to. Kartar  Singh  v.  State of Punjab,  [1962]  2  S.C.R.  395, explained. Like  s.  149 of the Indian Penal Code, s. 34 of  that  Code also  deals with cases of constructive liability.   But  the essential  constituent of the vicarious  criminal  liability under  s.  34 is the existence of common  intention.   Being similar  in  some ways, the two sections may in  some  cases overlap.  Nevertheless, common intention on which s. 34  has its  basis is different from the common object  of  unlawful assembly.   Common intention denotes action in  concert  and necessarily  postulates a prearranged plan, a prior  meeting of  minds  and an element of participation in  action.   The acts may be different and vary in character but they must be actuated  by the same common intention, common intention  is different from the same intention or similar intention. Mahabub  Shah  v.  King Emperor, (1945) L.R.  72  I.A.  148, referred to.

JUDGMENT: CRIMINAL        APPELLATE JURISDICTION : Criminal Appeal No. 186 of 1960. Appeal  by special leave from the judgment and  order  dated March 18, 1960, of the Punjab High Court in Criminal  Appeal No. 1040 of 1959. Raghubir Singh and R. S. Gheba, for the appellants. N.S. Bindra and P. D. Menon, for the respondent. 1962.  March 15.  The Judgment of the Court was delivered by GAJENDRAGADKAR J.-This appeal by special leave arises out of a criminal case in which the 850 appellants  Mohan  Singh and Jagir Singh  along  with  three others  were  charged with having committed  offences  under s.148 and s.302 read with s.149, as well as s.323, read with s.149 of the Indian Penal   ’Code.  The three other  persons who  were  thus charged along with the two  appellants  were Dalip Singh and two Piara Singhs who were the sons of Ujagar Singh  and Bahadur Singh respectively.  Of the five  accused persons, Dalip Singh was also charged under s.302. The  case against  these  per.  sons was tried by  the  II  Additional Sessions  Judge  at Ferozepore.  He held  that  the  charges framed  against  the two Piara Singhs had  not  been  proved beyond  reasonable doubt.  ’So, giving them the  benefit  of doubt,  he acquitted them.  Dalip Singh was convicted  under sections  302 and 147 and the two appellants were  convicted under  s.302 read with sections 149 and 147.  For the  major offence  of murder, all of them were sentenced to  imprison- ment  for life and for the minor offence under  s.147,  each one   of  them  was  sentenced  to  six   months’   rigorous imprisonment.    These   sentences  were  ordered   to   run concurrently.   This  order of conviction and  sentence  was challenged  by the said three accused persons by  preferring an appeal before the Punjab High Court.  The High Court  has accepted  the findings of the trial Judge and has  confirmed the  orders of conviction and sentence passed against  them. Thereafter,  the  said three accused moved  this  Court  for special  leave.  The application for special leave filed  by

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Dalip  Singh was dismissed, but that of the  two  appellants was  granted.  That is how the two appellants have  come  to this  Court  by  special leave, and  on  their  behalf,  Mr. Raghubir  Singh has urged that the conviction of the  appel- lants under s.302/149 is unsustainable in law, because as  a result  of  the  acquittal  of the  two  Piara  Singhs,  the provisions of s.149 were inapplicable.  851 Before dealing with the merits of the contention thus raised by  the  appellants, it is necessary to  state  briefly  the material   facts’   leading  to  the  prosecution   of   the appellants.   The incident giving rise to the  present  case took  place  on  the  9th May, 1959,  at  a  village  called Malsian.  The prosecution case is that on the said day,  the five accused persons named in the charge were members of  an ’unlawful  assembly  and that in prosecution of  the  common object  of the said assembly, they committed rioting and  at that  time  were  armed with deadly weapons.   It  has  also alleged that in pursuance of the said common object,  Gurdip Singh,  was  murdered  and injuries were  caused  to  Harnam Singh.   That is the bases of the charge under s.148  I.P.C. The  second  charge was that since Dalip Singh, one  of  the accused, had inflicted a fatal injury on Gurdip Singh on his head  in  prosecution of the common object of  the  unlawful assembly, all the members of the assembly were guilty  under s.302/149 of the Indian Penal Code for the murder of  Gurdip Singh.   Dalip  Singh was also charged under  s.302  without reference  to  s.149. That is the substance  of  the  charge based on the allegation that Gurdip Singh had been  murdered in  prosecution  of  the  common  object  of  the   unlawful assembly.   For  the  injury  caused  to  Harnam  Singh,  an additional  charge  was framed under s.323/149. As  we  have already pointed out, in the present appeal we are  concerned with the conviction of the appellants under s.302/149. It  appears that the appellants Mohan Singh and Jagir  Singh are uncle and nephew respectively, the latter being the  son of  Mohan  Singh’s brother Dalip Singh who was  one  of  the accused  in  the present case.  There was  a  third  brother named  Tara Singh who was married to Tej Kaur, the  daughter of Gurdip Singh, the victim of the assault.  Tara Singh  was murdered by some Muslims during 852 the  communal disturbances that raged in the Punjab  in  the wake  of the partition of the country in 1947.  As a  result of the said communal disturbances, the parties migrated from their  homes in West Pakistan to the East Punjab and in  due course,  were allotted land in village Malsian.   After  her husband’s  death, Tej Kaur began to reside with  her  father Gurdip Singh in village Ghandyala.  Since Tej Kaur had  left the  village’  of her husband, Dalip Singh and  Mohan  Singh managed  to  get into possession of her share of  the  Land. After the holdings in village Malsian had been consolidated, Tej Kaur obtained a separate holding of land as representing the   interest   of  her  deceased  husband,   Tara   Singh. Thereupon,   Mohan  Singh  and  Dalip  Singh  entered   into possession of the said land after executing a ’pattanama’ in her  favour.  Having entered into possession of her land  in this  manner,  they  did not care to pay the  share  of  the produce  to  Tej  Kaur regularly  and  in  consequence,  the amounts due from them fell into arrears.  Tej Kaur was  thus compelled to appoint her father Gurdip Singh as an  attorney in  order to realise the arrears of tent and to  take  steps for  evicting  Mohan Singh and Dalip Singh  from  her  land. When  the  attorney instituted eviction  proceedings,  Mohan Singh and Dalip Singh paid up the arrears, but even so,  Tej

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Kaur succeeded in obtaining an order of eviction.  The  said order  was  challenged  by Mohan Singh and  Dalip  Singh  by preferring an appeal, but the appeal failed and the order of eviction   was   confirmed.   That  naturally  led   to   an application  by Gurdip Singh for obtaining the execution  of the  said  order.  On this application,  warrants  for  pos- session  were issued.  It is because Gurdip Singh  was  thus effectively protecting the interest of his daughter that  he ultimately met his death on the 10th May, 1959, at the hands of the appellants and their companions. 853 Armed with the warrants of possession, Gurdip Singh went  to village  Behak Grujran to meet his cousin Harnam  Singh  and asked  for his assistance.  Accordingly Harnam Singh  agreed to  accompany  Gurdip Singh.  On May 9, 1959, both  of  them went  to  Zira  and requested the Patwari  and  Girdawar  to proceed  to the spot and deliver to them the  possession  of Tej Kaur’s land.  The Patwari, however, told them that since the  Qanungo was not in station, they might see him  in  the evening.  While they were in the Court compound, Dara Singh, the  brother of Gurdip Singh’s wife met them.  He  was  also requested  to join them and he agreed.  As suggested by  the Patwari,  the three of them went to see him in the  evening. Then  they all started towards the land in order to  deliver possession to Gurdip Singh.  The fields in question were  at a  distance  about a mile from the village abadi.   As  they approached  the fields, they saw the appellant  Mohan  Singh grazing cattle nearby.  Mohan Singh was accordingly informed by  the  Chowkidar who had joined the party  that  they  had arrived  to deliver possession of the land to Gurdip  Singh. Mohan  Singh thereupon left the spot on the pretext that  he was hungry and could not wait.  The Qanungo and the  Patwari then  delivered possession of the land in dispute to  Gurdip Singh  and the delivery was duly proclaimed in the  village. Since  a formal report about the delivery of possession  had yet  to be made, the party went back to the village.   While they were at a distance of about two squares, the appellants and  their companions were noticed coming out of a grove  of ’khajoor’  trees  armed with a lathi each.  As soon  as  the appellants were seen by Gurdip Singh and Harnam Singh,  they tried  to  run  away  but the  assailants  chased  them  and surrounded  them.  Dalip Singh opened the attack  on  Gurdip Singh by giving him a blow with a ‘dang’ on the head.  Jagir Singh followed and used his ‘dang’ on Gurdip 854 Singh’s  right  arm.  As a result, Gurdip  Singh  fell  down unconscious.  The appellants then assaulted Harnam Singh and gave  him several blows on all parts of his body.  An  alarm was  raised  by the other members of the party and  so,  the assailants  were afraid that villagers might arrive  at  the scene.   That is why they ran away.  Gurdip Singh  was  then put  in  a bug and taken to the hospital at  Zira.   Medical help  was given to him, but that proved ineffective  and  he ultimately  succumbed to his injuries in the early hours  of the  next morning.  Harnam Singh received treatment and  has recovered.   It  is on these facts that the  appellants  and their  companions were tried before the  learned  Additional Sessions  Judge  at  Ferozepore  for  having  committed  the offences as charged. All the accused denied the said charges.  The learned  trial Judge  considered  the  evidence  given  by  the   principal eyewitnesses Harnam Singh Phula, the Chowkidar and  Sandhura Singh,  the Qanungo; he also examined the  medical  evidence and came to the conclusion that the said evidence considered as  a whole, proved the charge against the appellants  under

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s. 302, read with S. 149 and 147 beyond a reasonable  doubt. He  likewise held that the charge against Dalip Singh  under s. 302 and 147 was satisfactorily proved.  In regard to  the two  Piara Singhs, however, be came to the  conclusion  that the  motive for the commission of the offence on  which  the prosecution  relied,  was not available against  them;  that their  names mentioned in the First Information  Report  did not satisfactorily prove their identity and that on the pro- babilities,  it  looked  very unlikely that  the  two  Piara Singhs  by reason of their alleged remote relationship  with the three other accused or their friendship with them, could have joined in making the assault on Gurdip Singh and Harnam Singh.   He hold that the reasons given by  the  prosecution for 855 their  joining in the assault appeared to him to be weak  as so,  he  entertained a reasonable doubt as to  whether  they had’  really taken part in the assault at all.  That is  how he  gave them the benefit of doubt and acquitted  them.   It appears  from his judgment, however, that the learned  Judge was satisfied that the large number of injuries inflicted on Harnam  Singh and Gurdip Singh and the complete  absence  of injuries  on the persons of the assailants would  show  that the  odds  were  very uneven and that  emphasised  that  the assault must have been the work of more than 3 or 4 members. He  also  held  that the direct  evidence  of  disinterested witnesses indicated that there were five assailants and  so, he  had no doubt that the charges of unlawful  assembly  and rioting were brought home even though he was acquitting  two of  the accused persons.  In other words, according  to  the learned Judge, though two of the five persons, charged  were acquitted,  that  still left five or more persons  who  were concerned  with the assault and so, the charge under s.  147 was established.  It is in the light of this finding that he convicted the appellants under s. 302/149. When  the appeal was argued before the High Court on  behalf of the appellants, the findings of the learned Judge on  the merits  were  challenged and the High Court  considered  the said  challenge  by  examining  the  evidence  for   itself. Ultimately,  it  was satisfied that the view  taken  by  the trial  Court was right.  It appears that in respect  of  the charge  under s. 149, the only contention raised before  the High  Court was that the said section did not apply  because the incident which resulted in the death of Gurdip Singh was no  more than a chance encounter.  The High  Court  examined this  argument  and held that the assailants were  lying  in wait  for Gurdip Singh and so, the assault on  Gurdip  Singh was the work of the members of the 856 unlawful  assembly  as  alleged  by  the  prosecution.    No argument was urged before the High Court that the  acquittal of  the  two  Piara  Singhs  in  law  rendered  section  149 inapplicable to the case. Mr.  Raghubir Singh, however, contended that the finding  of the  trial Court about the presence of five assailants  even after ignoring the alleged presence of the two Piara  Singhs is not justified.  Indeed, his case is that like the  charge which  specifies five named persons as the  assailants,  the whole  of the evidence, refers to the said five  persons  as the  assailants  and  no one e se.   This  position  is  not disputed by Mr. Bindra who appears for the State and so,  we must  proceed to deal with the merits of the appeal  on  the assumption that both in the charge and in the evidence,  the prosecution case in that five named persons were the members of an unlawful assembly two of whom have been acquitted; and

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that raises the question as to whether the acquittal of  the two Piara Singhs. leaves it open to the prosecution to  rely upon section 149 against the appellants. The   true  legal  position  in  regard  to  the   essential ingredients  of  an offence specified by s. 149 are  not  in doubt.  Section 149 prescribes for vicarious or constructive criminal  liability for all members of an unlawful  assembly where  an  offence  is committed by any member  of  such  an unlawful  assembly in prosecution of the’ common  object  of that  assembly or such as the members of that assembly  knew to  be  likely  to be committed in  prosecution  of  that  , object.  It would thus be noticed that one of the  essential ingredients  of section 14.9 is that the offence  must  have been committed by any member of an unlawful assembly, and s. 141  makes  it  clear that it is only  where  five  or  more persons constituted an assembly that an unlawful assembly is born, provided of course; the other requirements of the said section  857 as  to  the  common object of  the  persons  composing  that assembly are satisfied.  In other words, it is an  essential condition  of an unlawful assembly that its membership  must be  five or more.  The argument, therefore, is that as  soon as  the two Piara Singhs were acquitted, the  membership  of the assembly was reduced from five to three and that made s. 141  inapplicable which inevitably leads to the result  that s.  149  cannot be invoked against the appellants.   In  our opinion, on the facts of this case, this argument has to  be upheld.   We have already observed that the point raised  by the  appellants has to be dealt with on the assumption  that only  five  persons  were named in  the  charge  as  persons composing  the  unlawful assembly and evidence  led  in  the course  of  the  trial is confined only  to  the  said  five persons.   If that be so, as soon as two of the  five  named persons  are acquitted, the assembly must be deemed to  have been composed of only three persons and that clearly  cannot be regarded as an unlawful assembly. In dealing with the, question as to the applicability of  s. 149  in  such  cases it is necessary to  bear  in  mind  the several  categories of cases which come before the  Criminal Courts  for  their decision.  If five or  more  persons  are named  in the charge as composing an unlawful  assembly  and evidence  adduced  by  the prosecution  proves  that  charge against  all  of them, that is a very where s.  149  can  be invoked.   It is, however, not necessary that five  or  more persons  must be convicted before a charge under s. 149  can be successfully brought home to any members of the  unlawful assembly.   It  may be that less than five  persons  may  be charged and convicted under s. 302/149 if the charge is that the  persons  before  the Court,  along  with  others  named constituted an unlawful assembly; the other persons so named may not be 858 available  for  trial along with their  companions  for  the reason,  for instance, that they have absconded.  In such  a case,  the fact that less than five persons are  before  the Court does not make section 1.49 inapplicable for the simple reason  that both the charge and the evidence seek to  prove that  the  persons before the court and others  number  more than  five in all and as Such, they together  constitute  an unlawful  assembly.   Therefore, in order to  bring  home  a charge  under s. 149 it is not necessary that five  or  more persons  must  necessarily be brought before the  court  and convicted.  Similarly, less than five persons may be charged under  s.  149 if the prosecution case is that  the  persons

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before the Court and others numbering in all more than  five composed  an unlawful assembly, these others  being  persons not  identified  and  so  not named.  In  such  a  case,  if evidence shows that the persons before the Court along  with unidentified and un-named assailants or members composed  an unlawful assembly, those before the Court, can be  convicted under  section  149  though the  unnamed.  and  unidentified persons  are not traced and charged.  Cases may  also  arise where  in  the charge, the prosecution names  five  or  more persons  and  alleges  that  they  constituted  an  unlawful assembly.   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  is  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  or  even the  High  Court  in  appeal may be  able  to  come  to  the conclusion that the acquittal of some of the                             859 persons  named in the charge and tried will not  necessarily displace the charge under section 149 because along with the two or three persons convicted wore others who composed  the unlawful  assembly but who have not been identified  and  so have not been named.  In such cases the acquittal of one  or more  persons  named  in  the charge  does  not  affect  the validity  of  the charge under section  149  because-on  the evidence the court of facts is able to reach the  conclusion that   the   persons   composing   the   unlawful   assembly nevertheless  were five or more than five.  It is true  that in  the  last category of cases, the court will have  to  be very careful in reaching the said conclusion.  But there  is no  legal bar which prevents the court from reaching such  a conclusion.   The  failure to refer in the charge  to  other members  of the unlawful assembly un-named and  unidentified may  conceivably  raise the point as  to  whether  prejudice would be caused to the persons before the Court by reason of the  fact  that the charge did not  indicate  that  un-named persons  also  were members of the  unlawful  assembly.  But apart from the question of such prejudice which may have  to be  carefully considered, there is no legal  bar  preventing the  court  of  facts from holding that  though  the  charge specified  only five or more persons, the unlawful  assembly in  fact consisted of other persons who were not  named  and identified.   That appears to be the true legal position  in respect of the several categories of cases which may fall to be tried when a charge under section 149 is framed. In  this  connection we may refer  to  three  representative decisions of this Court.  In Dalip Singh v. State of  Punjab (1)  this  Court  has held that before section  149  can  be applied,  the  Court must be satisfied that  there  were  it least  five persons sharing the common object.  It has  also been held that this does not mean that five persons must (1)  [1954] S.C.R. 145. 860 always  be convicted before a. 149 can be applied.   If  the Judge  concludes  that  five  persons  were   unquestionably present and shared the common object, though the identity of some  of them is in doubt, the conviction of the rest  would be  good.  In that case, this Court took the view  that  the evidence  adduced by the prosecution did not  satisfactorily prove  the fact that the unlawful assembly was  composed  of

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five  or  more  -persons,  and so, s. 149  was  held  to  be inapplicable.   In  other words, on facts relevant  for  the purpose of applying s. 149 this case is similar to the  case with which we are concerned in the present appeal. In  Bharwad Mepa Dana v. State of Bombay (1) this Court  was dealing with a case where twelve named persons were  charged with  having  formed an unlawful assembly  with  the  common object  of committing the murder of three persons.   At  the trial before the Sessions Judge, seven of the named  persons were acquitted and five were convicted under s. 302/149  and s.  302/34.  On appeal, the High Court acquitted one of  the convicted    persons  but  maintained  the  conviction   and sentence passed on the rest. The validity of the said  order of conviction and sentence was challenged before this  Court on  several  grounds, one of which was that  s.  149  became inapplicable  as  soon as eight out of  the  twelve  persons named  as members of the unlawful assembly  were  acquitted. In  rejecting  this  argument, this Court  referred  to  the finding  recorded  by  the  High  Court  that  the  unlawful assembly  in question consisted of ten to  thirteen  persons out of whom only four were identified. and not the rest; and held  that it was open to the High Court to come to  such  a finding.  The argument which was argued against the validity of such finding was put alternatively in two forms.  It  was first contended that the prosecution case must be  confined. to  them charge framed against the accused per-sons and  the charge in the Scissions Court referred (1)  [1960] 2 S.C.R. 172.                             861 to  twelve named persons as composing the unlawful  assembly and and so, as soon as eight of them were acquitted, a.  149 became  inapplicable.  It was also urged that in  coming  to the  conclusion that the unlawful assembly consisted of  ten to thirteen persons, the High Court was making out a case of a  new unlawful assembly and that was not permissible  in  a criminal trial.  Both these arguments were repelled by  this Court  and  it was hold that there was no  legal  bar  which prevented the High Court from  coming to the conclusion that apart from the persons who were acquitted and excluding them evidence  adduced by the prosecution showed the presence  of more  than five persons who composed the unlawful  assembly, The  assembly about the Existence of which thee  High  court has  made  a  finding is not a new  assembly  but  the  same assembly as alleged by the prosecution.  The only difference is  that  according to the charge, all the  members  of  the assembly  were alleged to be known, whereas on the  evidence the High Court, has reached the conclusion that the identity of all the members of the assembly has not been  established though  the number of the members composing the assembly  is definitely  found to be five or more.  It is on this  reaso- ning  that  this  Court confirmed  the,  conviction  of  the appellants   under   s.  302/149.    Thus,   this   decision illustrates how s. 149 can be applied even if two or more of the persons actually charged are acquitted. The  same  principle has been enunciated by  this  Court  in Kartar  Singh  v.  State of Punjab(1).   According  to  this decision, it is only when the numb,or of alleged  assailants is  definite - and all of them are named and the  number  of persons  found  to  be  proved to have  taken  part  in  the incident is less than five, that it cannot be held that  the assailants,  party  must.  have consisted of  five  or  more persons.  It is true that having stated this position,  this Court has also observed that the fact that certain (1)  E 19621 2 S.C.R 395. 862

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persons  are  named in the charge as composing  an  unlawful assembly,  excludes the possibility of other persons to  be. in the said assembly especially when there is no occasion to think  that  the witnesses who named all the  accused  could have  committed mistakes in recognising the assailants.   It is on this observation that Mr. Raghubir Singh relies.   We, however,  think that it would be unreasonable to  read  this statement  as  laying down an unqualified  proposition  that whenever  persons  named,  in  the  charge  are  alleged  to constitute   an   unlawful  assembly  it  is   legally   not permissible  to  the prosecution to prove during  the  trial that  persons in addition to those named in the charge  also were            of the said assembly.  In other words,  what this  observation intends to suggest is that  whore  persons named  in  the  charge are alleged to  compose  an  unlawful assembly,  the court of facts would be slow to come  to  the conclusion that persons other than those named in the charge were  members of the said assembly.  If however, it  appears on,  evidence that persons not so named in the  charge  were members  of  the unlawful assembly there is’  no  legal  bar which  prevents  the courts from reaching  that  conclusion. This  position can and does arise where some of the  persons composing  the unlawful assembly are not identified  by  the witnesses and they are not named.  In fact, the decision  in the  case  of  Kartar Singh itself  shows  that  this  Court rejected  the  appellants contention that  their  conviction under  ss.  302  and  307,  read  with  s.149  was  invalid. Therefore, we see no inconsistency between the  observations made in this case and the earlier decisions to which we have just  referred.  The result is that in the circumstances  of the  present  case, the appellants are entitled  to  contend that s. 149 cannot be invoked against them. That  inevitably takes us to the question as to whether  the appellants can be convicted under  863 s.302/34. Like s. 149, section 34 also deals with casesof constructive  criminal liability. It provides that  where  a criminal  act is done by several persons in  furtherance  of the common intention of all, each of such persons is  liable for  that act’ in the same manner as if it were done by  him alone.  The essential constituent of the vicarious  criminal liability  prescribed  by s. 34 is the existence  of  common intention.  If the common intention in question animates the accused  persons and if the said common intention  leads  to the commission of the criminal offence charged, each of  the persons  sharing  the  common  intention  is  constructively liable  for the criminal act done by one of them.   Just  as the,  combination of persons sharing the same common  object is  one  of the features of an unlawful,  assembly,  so  the existence  of  a  combination of persons  sharing  the  same common  intention is one of the features of a. 34.  In  some ways the two sections are similar and in some cases they may overlap.   But, nevertheless, the common intention which  is the basis of s. 34 is different from the common object which is  the  basis of the composition of an  unlawful  assembly. Common  intention denotes action-in-concert and  necessarily postulates  the  existence of a pre-arranged plan  and  that must  mean  a prior meeting of minds.  It would  be  noticed that cases to which s. 34 can be applied disclose an element of  participation in action on the part of all  the  accused persons.   The  acts  may be different; may  vary  in  their character,  but  they are all actuated by  the  same  common intention.  It is now well-settled that the common intention required  by s. 34 is different from the same  intention  or similar  intention.   As  has been  observed  by  the  Privy

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Council in Mahbub Shah v. King Emperor (1), common intention within’  the meaning of s. 34 implies a  pre-arranged  plan, and to convict the accused of (1)  (1945) L.R. 72.  I.A.- 148. 864 an  offence applying the, section it should be  proved  that the  criminal act was done in concert pursuant to  the  pre- arranged  plan  and that the inference of  common  intention should  never be reached unless it is a necessary  inference deducible from the circumstances of the case. What  then  are the facts and circumstances  proved  in  the present case?  It is proved that the appellants shared  with Dalip Singh the motive which impelled Dalip Singh to inflict the  fatal  blow on Gurdip Singh.   The  close  relationship between  the appellants and Dalip Singh leaves no  room  for doubt  that they shared the same motive with Dalip Singh  to the same extent.  It is also proved that Dalip Singh and the two appellants were lying in wait for Gurdip Singh.  We have also seen that when the party accompanying Gurdip Singh told the  appellant Mohan Singh that the Patwari and the  Qanungo had  come on the spot to deliver possession of the  land  to Gurdip  Singh, Mohan Singh pretended that he was hungry  and went away.  Then he seems to have contacted Dalip Singh  and Jagir Singh and all the three were lying in wait for  Gurdip Singh,  who, they knew, would pass that way.  Thus  the  two appellants   and   Dalip   Singh,   deliberately   concealed themselves  behind a grove of Khajoor trees and  were  armed with  lathis.   This  conduct  on  the  part  of  the  three assailants clearly shows that they had the common  intention of fatally assaulting Gurdip Singh.  That alone can  explain why they were armed with lathis and why they hid  themselves behind the Khajoor trees.  Besides, as soon as Gurdip  Singh and  Harnam Singh came near the place where  the  appellants lay concealed, all of them rushed on Gurdip Singh and chased him  when  he  and Harnam Singh began  to  run  away.   This conduct  also clearly indicates the presence of  the  common intention.   After  chasing  the  victims,  three  of   them surrounded them and Dalip Singh, gave                             865 the fatal blow on Gurdip Singh.  In the act ’of  surrounding Gurdip  Singh, the two appellants undoubtedly  played  their part  and thus helped Dalip Singh.  After Gurdip  Singh  was fatally assaulted, the three assailants apprehended that the villagers would rush on the scene because an alarm had  then been raised and so, they ran away together.  On these facts, the conclusion appears to be inescapable that the appellants and  Dalip  Singh were actuated by the common  intention  to kill  Gurdip  Singh and the attack made by  Dalip  Singh  on Gurdip   Singh  was  in  furtherance  of  the  said   common intention.    Therefore,  in  our  opinion,  there   is   no difficulty  whatever in coming ’to the conclusion  that  the appellants  are  guilty under section 302/34 of  the  Indian Penal  Code.   We have no doubt that if the  appellants  had raised before the High Court the contention that s. 149  was inapplicable  to  their  case, the  High  Court  would  have without  any hesitation altered their conviction from  under s. 302/149 into one under s. 302, read with s. 34. The   result  is,  the  conviction  of  the  appellants   is accordingly  altered into one under section 302,  read  with section  34 of the Indian Penal Code.  This modification  in the  order of the conviction does not require any change  in the order of sentence at all.  For the offence under section 302,  read with s. 34 of which we are convicting them,  they would be sentenced to imprisonment for life.  The conviction and sentence for the offence under section 147 is,  however,

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set aside and they are ordered to be acquitted in respect of that offence. 866