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PETITIONER: BHARWAD MEPA DANA & ANOTHER

       Vs.

RESPONDENT: STATE OF BOMBAY

DATE OF JUDGMENT: 10/11/1959

BENCH: DAS, S.K. BENCH: DAS, S.K. SARKAR, A.K. HIDAYATULLAH, M.

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)

ACT:        Criminal   Trial-Murder-Unlawful   assembly-Common   object-        Acquittal of some, conviction of less than five-Legality of-        Common  intention-No proof who gave fatal  blows-Effect  of-        Indian Penal Code, 1860 (XLV of 1860), ss. 34 and 149.

HEADNOTE: 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  further- ance  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

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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, [1950] F.C.R. 834, Dalip  Singh v.  State  of  Punjab, [1954] 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, [1956] S.C.R. 191, referred to. Prabhu Babaji Navle v. The State of Bombay, A.I.R. 1956 S.C. 51, distinguished.

JUDGMENT:        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  the        respondent.        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 accused  persons.        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

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      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  Sau-        rashtra  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 an acquittal.        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  occurrence.        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

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      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 and Mitha.        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."

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      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  these  brothers.        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

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      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 con-        sisted 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

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      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  assembly.        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 the charge.        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

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      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)  [1955] 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 a- case in which four named individuals-   were  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,

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      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)  [1950] F.C.R. 834.        24        (2) [1954] 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."

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      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  co-        accused.   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,

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      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) [1956] S.C.R. 191.        (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.        Appeal dismissed.