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PETITIONER: DHARAM PAL & ORS.

       Vs.

RESPONDENT: THE STATE OF U.P.

DATE OF JUDGMENT01/09/1975

BENCH: BEG, M. HAMEEDULLAH BENCH: BEG, M. HAMEEDULLAH BHAGWATI, P.N. SARKARIA, RANJIT SINGH

CITATION:  1975 AIR 1917            1976 SCR  (1) 587  1975 SCC  (2) 596  CITATOR INFO :  R          1976 SC1084  (9,18)

ACT:      I.P.C. Sec  . 302  read sec  .149 and  34-Conviction of four  accused   and  acquittal  of  rest  -Whether  unlawful assembly  Whether   conviction  under   common  intention  - Vicarious liability-  U.P. Children  Act, 1951-Sec. 29-Young accused -Recommendation of remission.

HEADNOTE:      The 4  appellants were  tried along  with 14 others for the offence of rioting in the course of which 2 murders were committed at  6-30 a.m on 7-1967. The prosecution revealed a long standing  enmity between  the tyo  groups; one to which the appellants  belonged and the other to which the deceased belonged. The  defence case was that people belonging to the group  of   the  deceased   killed  the  deceased  and  that thereafter they  attacked the  3 injured  appellants. At the trial however,  the defence  witnesses  stated  that  the  3 witnesses who  were injured(l a(tempted to save the deceased and were therefore injured.      The  prosecution  evidence  suffered  from  some  quite obvious infirmitied.  Each of  the 4  injured eye  witnesses while naming  each of the IX accused persons as participants in the  occurrence and  specifying their weapons without any contradiction had  failed to  assign any  particular part of any of  them. Each  injured eye-witness  said  that  all  18 accused persons  were assaulting  the  injured.  I  his  was hardly consistent with the medical evidence.      The Trial  Court acquitted  11 accused  giving them the benefit of  doubt and convicted 7 including the 4 appellants under section 302 read with section 149.      The High  Court gave  the benefit  of doubt  to all the accused except  the 4 appellants. The High Court came to the conclusion that  the 4  appellants had  taken  part  in  The attack in view of the admission of the 4 accused about their participating in the occurrence corroborated by the injuries on the bodies of 3 of them.      On appeal  by Special  leave it  was contended  by  the appellants that  since 14  out of  18 accused  persons  were actually acquitted  the Court must presume that total number

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of assailants  was less  than 5  and  that  they.  therefore cannot be convicted under section t 49 ^      HELD: 1.  It is  true that  the acquittal of an accused person does  raise in  the eye of law, a presumption that he is innocent  even if  he was actually guilty. but it is only the acquitted  accused person  and not the convicted accused person who  can  as  a  rule  get  the  benefit  of  such  a presumption. The  effect of  findings on  questions of  fact depends upon  the nature of those findings 1 only five known persons are  alleged to  have participated in an attack; and the counts  find that  2 of  them were falsely implicated it would be  quite natural and logical to infer or presume that the participants  were less  than 5 in number. On the other. hand if  the court  holds that the assailant were actually 5 in number but there could be a doubt as to the identity of 2 of the  alleged assailants  and therefore  acquits 2 of them the others  will not  get the  benefit of  douht. so long as there is  a firm  finding based  on good  evidence and sound reasoning that  the participants  were 5  or more in number. Such a  ease is  one of  doubt only  as to  identity of some participants and  not as  to total  number of  participants. [594A-C]      2. It  is true  that there  are some unfirmities in the prosecution  evidence   However  the  impression  of  rustic witnesses sought  to he  conveyed through  their  statements cannot be  interpreted as though they were made in carefully drawn up  documents calling  for a  literal  interpretation. [592 H] 588      3. The  number and  location of  injuries on both sides also indicate  an attack   by  a group of persons which must have surrounded the party of the deceased persons travelling in the  Buggi. Even is 2 persons are engaged in stopping the Buggi and  there are  2 on  each side  of the Buggi then the number would  be 6.  Again, even if one person Is assumed to be the  assailant of  each of  the victims in a simultaneous attack upon  them the  number of such assailants alone would come to  at least  6. The  deceased had  injuries with sharp edged weapons  and lathis.  It is  therefore clear that each one was  attacked by  more than one person. These facts were enough to  come to  the conclusion  that the total number of assailants could not conceivably have been less than 5. [593 C-E]      4. Even  if the  number of  assailants could  have been less than  5 (which  can the  facts stated  was  really  not possible) we  think that  the fact  that the attacking party was clearly shown to have waited for the Buggi to reach near the field  of Daryao  in the early hours shows pre-planning. Some of  the assailants  had sharp  edged weapons. They were obviously lying  in wait  for the  Buggi to  arrive. A  more convincing evidence  of a  pre-concert  was  not  necessary. Therefor if  necessary. we would not have hesitated to apply section 31  of I.P.C.  also to  this case.  The principle of vicarious liability  does not  depend upon  the necessity to convict the  required number  of persons but it depends upon proof of  facts beyond  reasonable doubt  which makes such a principle applicable. [594 F-H  595-A]      Yeshwant & Anr. v. State of Maharashtra [1973] 1 S.C.R. 291 It  302-303 at  and Sukh   Ram v. State of U.P. [1974] 2 S.C.R. 518 distinguished.      5.The age  of appellant Om Pal at the time of trial was IS years.  Section 29  of the  U.P. Children  Act  1951  was applicable to  the case. This question was not raised either before the Trial Court or before the High Court. Although Om

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Pal accused  was said  to be  armed with a lathi no specific part was  assigned to  him by  the prosecution  witnesses He must have  been misled  by the bad example of his elders. No previous participation  in  such  a  case  and  no  previous conviction was  shown against  him. The  appropriate  ac(ion under section  29 of  the Children Act could have been taken in his  case is  the question  had been  raised in time. The Court recommended  the remission  of the remaining period of Om Pal to the authorities concerned. [548D H. 599A-C]

JUDGMENT:      CRIMINAL APPELLATE  JURISDICTION: Criminal  Appeal  No. 108 of 1971.      Appeal by  Special Leave  from the  Judgment and  order dated the 20th November, 1970 of the Allahabad High Court in Criminal Appeal No. 495 of 1968.      D. Mukherjee,  U. K.  Jha and  U.  P.  Singh:  for  the Appellant.      D. P. Unival and o. P. Rana for the Respondent.      The Judgment of the Court was delivered by-      BEG, J.-The  four  appellants  Daryao  Singh,  aged  46 years. Birbal aged 50 years, Dharam Pal aged 29 years and Om Pal, aged 15 years, were tried, alongwith 14 others, for the offence of  rioting in  the course of which two murders were committed, on  7.6.1967, at  about  6.30  a.m.,  on  a  path adjoining the field of the appellant Daryao Singh leading to village Parsoli  from village  Nirpura,  in  Police  Station Doghat, in the District of Meerut. The Trial Court acquitted eleven accused  persons giving them the benefit of doubt and convicted seven  including the  four appellants. Each of the accused persons was charged and convicted under Section 302, read with  Sections 149,  Indian Penal Code and sentenced to life imprisonment,  in addition  to charges  and convictions under Section  149/324 and  149/34 I.P.C.  and either  under Section 147  or Section 148 I.P.C. depending upon the weapon alleged to have been used by an accused person. 589      The prosecution  case revealed  a long  standing enmity between two  groups of  village Nirpura:  one to  which  the appellants  belonged  and  another  to  which  Mukhtara  and Raghubir, the  murdered men,  and  the  four  other  injured persons belonged.  As is  not unusual,  the  origin  of  the hostility between the two sides seems to have been a dispute over cultivable  land between collaterals who had some joint Khatas.  Asa   Ram,  P.W.  1,  claimed  to  be  in  separate possession of  some plots  with his  two brothers, including Raghubira (murdered), and his uncle Mukhtara (murdered) . It was alleged  by Asa Ram (P.W. 1) that Daryao Singh appellant wanted to  take forcible  possession of some land cultivated by him.  Daryao Singh and others had already filed partition suit which  was pending  at the  time of  the occurrence. It appears that  Hargyan, the father of the appellant Daryao, a first cousin  of Mukhtara,  the murdered  man, had also been murdered in  1923 over  a similar  dispute. Asa Ram (P.W.1), and Raghubira  (deceased), Bija (P.W. 10) and Asghar (P.W 4) had been  convicted and sentenced to life imprisonment. They had been released on parole after five years’ imprisonment      On the  date of occurrence, Mukhtara, the murdered man, was said  to be  proceeding  with  Raghubir,  who  was  also murdered, and  Asa Ram, P.W.1, and Bija, P.W.10, all sitting in a  buggi driven by Asghar, P.W.4, and Smt. Jahani, P.W.3, the wife  of Asa  Ram, P.W.1,  was said  to be following the buggi at a short distance with some food for the party. When

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this buggi reached the field of Daryao Singh, where a number of persons,  said to be eighteen altogether, whose names are mentioned in  the First  Information Report lodged at Police Station Doghat  at a  distance of  three miles  from village Nirpura at  8.30 a.m.,   were sitting on the boundary. These persons  are  alleged  to  have  surrounded  the  buggi  and attacked its occupants with balams and lathies shouting that the  whole  party  in  the  buggi  should  be  killed.  give occupants of  the buggi,  and, after  that, Smt. Jahani, who soon joined  them, were  injured. Two  of them, Mukhtara and Raghubir, died  very soon  after the  attack. It was alleged that Dharam  Pal, Birbal  and Daryao, appellants, and Nahar, Ajab Singh,  and Ram  Kishan, acquitted  persons, were armed with balams, one Salek Chand was armed with a spade, and the rest with  lathis. A  number of  witnesses are  said to have arrived in response to the shout of the injured occupants of the buggi.  The following  injuries are  shown to  have been sustained by the victims of the attack:           1. MUKHTARA:           "1.  Vertical abrasion, 1 1/2 in. x 1/2 in. On the                head, 4 in. above the middle of the left eye-                brow           2.   Transverse abrasion, 1 3/4 in.x3/4 in. On the                head, 5 in. above the right eye-brow.           3.   Round swelling" 2 in.x2 in. On the right side                of the head, 1/2 in. above the ear, there was                a depressed  fracture 2  in.x2 in. underneath                on the bone.           4.   Transverse   incised   wound   1   1/2in.x1/2                in.xboneand brain  deep on  the  head  1  in.                behind the  middle of  the right  car.  Brain                matter was coming out of the wound. 590           5.    Transverse incised wound 1 1/4in.x 1/2 in. x                bone deep  on the  A head  3 in.  behind  the                upper part  of the  right car. The margins of                injuries Nos.  4 and 5 were clear cut, smooth                and well  defined and  angles on both the end                were acute.           6.    Round  blue mark  2 in.x2  in. On  the right                shoulder portion. There was swelling all over                the head.  There was no reference of injuries                Nos. 1 and 6 in the inquest report .           2.   RAGHUBIRA           1.    Transverse abrasion 1/4 in.x1/2. On the left                ankle inner side.           2.    Vertical punctured wound in.x1/3 in.x1/4 in.                On the  back side,  of  the  elbow,  margins,                clean cut.  smooth  and  wall    defined  and                angles were acute.           3.   Transverse lacerated wound on the head, 1 1/2                in. x  2 in. bone deep on the right side 3 in                above the car.           4.    Round  wound on the head 4 1/2 in. above the                middle of  the right  eye-brow  with  margins                clean cut".           3.   ASA           1.    Punctured  wound 1/2  in.x1/4 in.x1/4 in. On                the left  side of the chest with abrasions on                the margins, 64 in. below the axile.           2.   Abrasion  1/2   in.x1/4  in.   On  the   left                shoulder.           3.   Abrasion 1/2  in.x1/4  in.  oblique,  on  the                right side  of the  chest  extending  towards                right shoulder from epigastrium.

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         4.   Abrasion 1/4 in.x1/8 in. On the inner side of                the left hand I in. above the wrist.           5.   Abrasion 1/4in.x1/6 in. On the right arm back                side 3 in. above the elbow.           6.   Contusion 3/4 in.x1/2 in. On the right side 3                in. below the edge of the iliac crest.           7.   Incised wound  1/2 in.x1/10  in. x  skin deep                1/2 in. below the left eye."           4.   SMT. JAHANI:           1.   Lacerated wound 1 1/3 in. x 1/2 in. bone deep                from front  to backward  3 1/2  in. above the                left ear.           2.   Contusion  4   1/4  in.x1  in.  On  the  left                scapular  region.   2  1/2   in.  below   the                shoulder.           3.   Contusion 1  1/2 in.x1/4  in. parallel to the                earth extending  from the upper and inner end                of injury  No. 2.  These injuries were simple                and had  been caused  by some  blunt  weapon,                like  lathi   and  were  about  6  hours  old                (fresh). I had prepared the injury report Ex.                Ka 16 at the time of examination. It bears my                signature and is correct." 591           5.   ASGHAR:           1.   Contusion 2  in.x1/4 in.x1/4  in. going  from                front to back 31 in. above the nose.           2.   Punctured wound  1 in.x  ’ in.x-4  in. On the                left hand, outer side 2 in. below the elbow.           6.   BIJAI SINGH:           1.   Contused wound  1/2 in.x1/2   in. x skin deep                at the  part above  the nail  of the thumb of                right hand  with contusion 1 1/4 in. x1/2 in.                in the inner part of the nail.           2.   Contusion 2  1/4 in.x3/4  in. extending  from                the  palm   on  the   1st  and  2nd  knuckles                whereblood had  clotted in an area of 1/2 in.                x1/4 . On the palmer side.           3.   Abrasion 1/2  in.x1/4 in.  On  the  back  and                anterior side  of right hand, 3 1/2 in. above                the  wrist."                     Injuries were  found on  the side of the                accused on  3 appellants  only. They  were as                follows:           (1)  OM PAL:           1.   Lacerated wound  1/2 in.x4/10 in.x2/10 in. on                the inner  side of  left forearm  3  1/2  in.                above the left wrist.           2.   Lacerated wound 2/10 in.x2/10 in.x6/10 in. On                the inner side of left forearm.           3.   Abrasion 3/10  in.X21 10  in. On  the upper r                side of  left forearm,  3 1/2  in. above  the                left wrist."           2.   DARYAO:           "1.  Abrasion in.x3/10  in on the left shoulder in                front side.           2.   Wound with scab 4/10 in.x2/10 in. On the left                are outer side, 6 in. below left shoulder".           3 .  BIRBAL:           1.   Lacerated wound  2 in.x3/10  in. bone deep on                the front , side of head.           2.   Abrased contusion  1 in.x2/10 in. On the left                side of head, 3 in. above the left ear.           3.   Contusion 1/2  in.x4/10 in. On the right side                of head, 2 in. above the right ear.

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         4.   Abrasion 1/4  in.x1/4 in. On the index finger                of the  right hand  upper side  on the middle                phalux.           5.   Abrasion 1/4 in.x1/4 in. On the upper side at                the root of the middle finger of right hand.           6.   Abrasion 1/2  in.x1/10 in.  On the inner side                of the  lower portion of left fore-arm, 3 in.                above the wrist.           7.   Abrasion 3/10  in.x1/10 in. On the inner side                of left wrist. 592           8.   Lacerated wound 3/10 in.x1/10 in.x3/10 in. an                the A right at a distance of 31 in. from side                of thigh, anterior iliac spine".      It is  significant that  in answer to the last question put  to   Daryao  Singh,   appellant,  in   the   Committing Magistrate’s Court,  under Section  342  Criminal  Procedure Code, whether  he had  nothing else  to say, the first thing that came  to his  mind was  that Asa  Ram P.W.1, and Bijai, P.W. 10  and Raghubir (deceased) had killed his father about 15 years ago.      The defense  case seemed quite absurd. It was that, Asa Ram and  Bijai and  Asghar, after having killed Mukhtara and Raghubir,  haul   come  and   attacked  the   three  injured appellants at  the time and place given by the, prosecution. Their defense  witness, however,  in an  obvious attempt  to explain the  injuries of  the three  appellants, put forward the entirely  new version that, when Asa, Bijai, and Asghar, were killing  Mukhtara  and  Raghubir,  the  three  injuries appellants had  attempted to  save the murdered men and were injured as a consequence. The accused had even filed a First Information Report on these lines. They unsuccessfully tried to prosecute  Asa and Bijai and Asghar who could not, as the Trial Court  and the  High Court  had rightly  observed,  be expected to run berserk suddenly and attack persons on their own side for no explicable reason.      The prosecution  had, in  addition to examining injured witnesses, mentioned  above, produced  Rattan  Singh  P.W.2, Kalu, P.W.9, and Lakhi, P.W.7, whose testimony was discarded by it on two grounds: firstly, because each one was shown to have some  enmity with  some accused  person; and, secondly, because they  were said  to have  been standing  at a  Harat nearly 400  paces away  from where‘  according to  the  High Court, they could not have seen the occurrence. If there was no obstruction  to the  range, of vision, and none was shown by evidence,  these witnesses  could at  least make  out the number of  assailants from  this distance  as  sunlight  was there.      The  prosecution  evidence  suffered  from  some  quite obvious infirmities. Each of the four injured eye witnesses, while  naming  each  of  the  eighteen  accused  persons  as participants in the occurrence and specifying their weapons, without  any   contradiction,  had   failed  to  assign  any particular part  to any  of them.  Each injured witness said that all  the eighteen  accused persons,  named in the First information Report,  were assaulting  the injured.  This was hardly consistent  with either  the medical  evidence or the very short  time the  whole  occurrence  was  said  to  have lasted. It  was physically  impossible for  all the eighteen accused persons  to attack  simultaneously each  of the five victims. However,  we cannot  interpret the  impressions  of rustic  witnesses,  sought  to  be  conveyed  through  their statements‘ as  though they  were made in carefully drawn up documents calling  for  a  literal  interpretation.  It  was likely that  each  of  them  had  seen  some  acts  of  some

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assailants, but,  due  to  natural  discrepancies  in  their accounts,  as  each  could  only  depose  the  part  he  had observed, each  had been instructed to omit this part of his testimony. That  may explain  how each  consistently  stated that all the accused persons were attacking 593 his or  her party although he or she could not specify which accused attacked which victim. From the manner in which each witness could,  without making any mistake, name each of the eighteen accused  persons, almost  in the  same  order,  and specify the  weapon each  carried, without  any discrepancy, some tutoring  could be  suspected. Nevertheless,  both  the Trial Court  and the  High Court  had reached  the  definite conclusion that  the party  of assailants  consisted of more than   five persons.  It also  found  that  this  party  was sitting on  the boundary  of the field of Daryao, apparently waiting with  their weapons for the buggi, carrying Raghubir and Mukhtara  and others.,  to reach  the  spot  where  they surrounded it  and attacked.  It was  clear, from the nature and number  of injuries of both sides, which we have set out above  in  extenso,  that  the  attacking  party  must  have consisted of more persons than the party of the male victims who were  five in  number. Even  if these  five victims were sitting in the buggi they were not all empty handed. Some of them had lathis which they plied in self defence. The number and location  of injuries  on both  sides also  indicated an attack by  a group of persons which must have surrounded the party traveling  in the  buggi.  Even  if  two  persons  are engaged in  stopping the  buggi and there are two on each of the two sides of the buggi their number would be six. Again, even if  at least  one person is assumed to be the assailant of each  of the victims, in a simultaneous attack upon them, the number  of such  assailants alone would come to at least six. It is, however, clear from the injuries on Mukhtara and Raghubir that  each was  attacked by  more than  one  person because each  had injuries  with  sharp  edged  weapons  and lathis. these  facts were  enough to  come to the conclusion that the  total number  of assailants  could not conceivably have been  less than  five. The  High Court  however,  after giving the  benefit of doubt to four of the accused persons, on the  ground that their cases did not differ from those of the  others   acquitted,  came   to  the  obviously  correct conclusion that  at least the four appellants before us must have taken  part in  the attack  because they admitted their participation in the occurrence which took place at the time and place of the incident in which Raghubir and Mukhtara had lost their  lives. Three  of the  accused persons as already indicated, had  received injuries.  On  their  own  version, these injuries  were sustained  in the  same occurrence. If, therefore, the prosecution version about the broad character of the incident is correct, the only question which remained was:  Against   which  accused   person  was   the  case  of participation in  the attack  established beyond reason able doubt?      The  High   Court  came  to  the  conclusion  that  the admissions of the four accused, corroborated by the injuries on the  bodies of  three OF  them, left  no doubt whatsoever that they  were, in  any case,  among  the  assailants.  The others had  merely been given the benefit of doubt lest some injustice  is   done  by   relying  implicitly  on  partisan witnesses appearing  in a type of case in which the innocent ale not  infrequently sought  to be roped in with the guilty who are,  of course,  not spared. This did not mean that the total number  of assailants  was actually  less than five as the learned  Counsel for  the appellants asked us to presume

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from the  fact that  fourteen out  of the  eighteen  accused persons were actually acquitted. 594      It is true that the acquittal of an accused person does raise, in  the eye of law, a presumption that he is innocent even if  he was  actually.  guilty.  But,  it  is  only  the acquitted accused  person  and  not  the  convicted  accused persons who  can, as  a rule,  get the  benefit  of  such  a presumption. The  effect of  findings on  questions of  fact depends upon  the nature of those findings. If, for example, only five  known persons are alleged to have participated in an attack  but the Courts find that two of them were falsely implicated, it  would be  quite nature; and logical to infer or presume  that the  participants were  less than  five  in number. On  the other  hand, if  the Court  holds  that  the assailants were  actually five in number, but there could be a doubt as to the identity of two of the alleged assailants, and, therefore,  acquits two of them the others will not get the benefit  of doubt  about the identity of the two accused so long  as there  is a firm finding, based on good evidence and sound reasoning, that the participants were five or more in number.  Such a  case is one of doubt only as to identity of some  participants and  not as  to  be  total  number  of participants. It  may be that a definite conclusion that the number of  participants  was  at  least  five  may  be  very difficult to  reach whale the allegation of participation is confined to  five known persons and there is doubt about the identity of  even one.  But, where  a large  number of known persons (such  as eighteen,  as is  the case before us), are alleged to  have participated  and the  Court  acts  on  the principle that it is better to err on the side of safety, so that no  injustice is  done to a possibly wrongly implicated accused, and  benefit of  doubt is reaped by a large number, with the  result  that  their  acquittal,  out  of  abundant caution,  reduces   the  number   of   those   about   whose participation there  can be  no doubt  to less than five, it may not  be really  difficult at  all, as it not in she case before us,  to recall the conclusion that, having laggard to undeniable facts,  the  number  of  participants  could  not possibly be  less than  five. We have, for the reasons given above, also  reached the  same  conclusion  as  the  learned Judges of  the Allahabad  High Court.  We wish that the High Court had  itself given  such reasons,  which are not at all difficult to  find in  this case,  so that its conclusion on the number  of participants  may not  have  appeared  ratter abrupt. Justice  has not  only to be done, but, as have been often said, must manifestly appear to be done.      Even if  the number  of assailants could have been less them five in the instant case (which, we think, on the facts stated above,  was really  not possible),  we think that the fact that  the attacking  party was  clearly shown  to  have waited for  the buggi  to reach  near the field of Daryao in the early hours of 7.6.1967, shows pre-planning. Some Of the assailants had  sharp edged  weapons.  They  were  obviously lying in  wait for  the buggi to arrive. They surrounded and attacked the  occupants shouting  that the occupants will be killed. We  do not  think that more convincing evidence of a pre-concert was  necessary. Therefore,  if we had thought it necessary, we  would not have hesitated to apply Section 34, I.P.C.  also  to  this  case.  The  principle  of  vicarious liability does  not depend  upon the  necessity to convict a required number  of persons. It depends upon proof of facts, beyond reasonable 595 doubt which makes such principle applicable. (See: Yehwant &

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Anr. v.  State of  Maharashtra;(1) and  Sukh Ram v. State of U.P.)(2). The  most general  and basic  rule, on  a question such as  the one  we are  considering, is  that there  is no uniform,  inflexible   or  invariable  rule  applicable  for arriving at what is really an inference form the totality of facts and  circumstances which  varies from case to case. We have to  examine the elect of findings given in each case on this totality.  It is  rarely exactly identical with that in another case.  Other rules  are really  subsidiary  to  this basic verity and depend for their correct application OF the peculiar facts  and circumstances  in the  context of  which they are enunciated.      In Yeshwant’s  case (supra),  the question  was whether the  acquit(ah   of  an  alleged  participant,  said  to  be Brahmanand   Tiwari, for  the murder  of a man called Sukal, could make it impossible to apply the principle of vicarious liability to convict, under Section 302/34 I.P.C., Yeshwant, the only other participant in under. This Court observed (at p.303):           The benefit  of this  doubt can  only  go  to  the      appellant  Brahmanand  Tiwari  and  not  to  the  other      accused persons  13 who  were known  well to  each eye-      witness."      Distinguishing  Krishna   Govind  Patil   v.  State  of Maharashtra (3)  this Court said in Yeshwant’s case  (supra) (at p. 302):           "We do  not think that this decision which depends      upon its  own facts,  as criminal  cases generally  do,      lays  down   any  general  principle  that,  where  the      identity of  one of  the participants  is doubtful, the      whole case  must end  in  acquittal.  Such  a  question      belongs to the realm of facts and not of law: ‘      The following  cases were  also cited  before us: Dalip Singh &  v. State  of Punjab (4) Bharwad Mepa Dana & Anr. v. State of  Bombay;(5) Kartar  Singh v.  State  of  Punjab;(6) Mohan Singh v. State of Punjab;(7) Ram Bilas Singh & Ors. v. State of Bihar(8)      In  the  case  of  Ram  Bilas  Singh  (supra)  previous decisions of  this Court  on the  question argued  before us have been  considered at  some length  and  a  passage  from Krishna Govind Patil’s case (supra) was also quoted. In none of these  cases was  it decided that where, out of abundance of caution,  a large  number of accuse(l persons obtained an acquittal with  the result  that the  number of  those whose participation is  established  beyond  reasonable  doubt  is reduced to  less than  five, but,  at the  same time,  it is clear that  the total number of assailants could not be less than five,  the convicted  accused persons  must necessarily get the  benefit  of  doubt  arising  in  the  case  of  the acquitted accused  persons. A  case like  the one  before us stands on  the Same footing as any other case where there is certainty that  the number of participants was not less than five but there is doubt only as to      (1) [1973] I S.C.R. p. 291 @ 302 & 303.      (2) [1974)                                             2 S.C.R. p. 518.      (3) [1964] (1) S.C.R. 678.       (4) [1954] S.C.R. 145.      (5) [1960] 2 S.C.R. 172.       (6) [1962] 2 S.C.R. 395.      (7) [1962] Suppl (3) S.C.R. 848.         (8) [1964] (1)                                                  S.C.R. 775. 596 The identity  of some  of the  participants. It  has  to  be remembered  that   doubts  may  arise  with  regard  to  the participation   of    a   particular   accused   person   in circumstances whose  benefit  can  only  be  reaped  by  the accused who  raises such  doubt. Doubts may also arise about

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the veracity  of the  whole prosecution  version and  doubts about the  participation of  individual accused  persons may contribute to  the emergence  of such doubts which may cover and engulf  the whole  case. Never  the less,  if, as in the instant case,  the Courts,  whose duty  is to  separate  the chaff from  the grain,  does hold that the convicted persons were certainly  members of  an unlawful  assembly which must have consisted  of more than five persons, we do not see any principle of  law or justice which could stand in the way of the application  of Section  149 J.P.C. for convicting those found indubitably guilty of participation in carrying out of the common object of an unlawful assembly.      The only  remaining question  arises from the age of Om Pal Which,  at the  time of  trial, was  found by  the Trial Court to  be about  15 years.  This means that Section 29 of the Uttar  Pradesh Children Act, 1951, was applicable to the case. This Section reads as follows:           "29. Commitment of child to approved school      (1) Where a child is found to have committed an offence      punishable with  transportation  or  imprisonment,  the      Court, if  satisfied on inquiry that it is expedient so      to deal  with the child, may order him to be sent to an      approved school  for such  period of  stay as  will not      exceed beyond  the time  when the child will attain the      age of  18 years  or for  a shorter period, the reasons      for such period to be recorded in writing.           (2) Where  prior to the commencement of this Act a      youthful offender  has been sentenced to transportation      Or imprisonment,  the State  Government may direct that      in lieu  of undergoing  or completing  such sentence he      shall, if under the age of sixteen years, be sent to an      approved school,  and thereupon  the offender  shall be      subject to  all the provisions of this Act as if he had      been originally ordered to be detained in such school."      This question  was not raised earlier so that the Trial Court or  the High  Court may take the action it was open to the Courts  to take  after  due  inquiry.  Such  action,  if considered expedient, could only be to send the appellant to an approved  school. We  may  observed  that,  although  the appellant om  Pal was  said to  be armed  with a  lathi,  no specific  part  was  assigned  to  him  by  any  prosecution witnesses. He  was bound,  with the  background of hostility between two sides and 597 the events  mentioned above,  to have been misled by the bad example of  his elders.  No previous participation in such a case and  no previous  conviction was shewn against him. We, therefore, think that appropriate action under Section 29 of the Children’s  Act could have been taken in his case if the question  had   been  raised  in  time.  We  hope  that  the punishment he  has already  undergone  has  had  a  salutary effect in  making  him  conscious  of  the  gravity  of  the consequences of  joining an  unlawful assembly.  All that we can do  now, in  the circumstances  of Om  Pal’s case, is to recommend the  remission of the remaining period of om Pal’s sentence to the authorities concerned.      Subject to  the observations  made above with regard to om Pal,  we affirm the convictions and sentences and dismiss this appeal. P.H.P.                                      Appeal dismissed 598