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PETITIONER: RAM TAHAL & ORS.

       Vs.

RESPONDENT: STATE OF U.P.

DATE OF JUDGMENT18/11/1971

BENCH: REDDY, P. JAGANMOHAN BENCH: REDDY, P. JAGANMOHAN PALEKAR, D.G.

CITATION:  1972 AIR  254            1972 SCR  (2) 423  1972 SCC  (1) 136

ACT: Indian  Penal  Code (Act, 45 of 1860), ss. 34  and  149--Six persons  named as the only members of unlawful  assembly-Two acquitted   Whether  others  can  be  convicted   under   s. 149--Conviction under s. 34--Conditions for.

HEADNOTE: Six accused were charged with the offenses under ss. 148 and 302  and  307  read with s. 149 I.P.C.,  for  having  formed themselves into an unlawful assembly with the common  object of demolishing a thatch belonging to the complainant and for causing  death and injuries when resisted.  The trial  court convicted  them.   On appeal, two of the  accused  were  ac- quitted and the appellants were convicted for offenses under ss. 148 and 304 and 307 read with s. 149., On the question of the validity of the conviction, HELD  :  (1) Before s. 149,  which  prescribes  constructive criminal liability for members of an unlawful assembly,  can be  called in aid, the court must find with  certainty  that there  were at least five persons sharing a  common  object. It  is  possible  in some cases that though  five  were  un- questionably present the identity of one or more is in doubt in  which case a conviction of the rest with the aid  of  s. 149  would be good.  Therefore, it is not necessary that  in every  Case five persons must always be convicted before  s. 149  can  be applied.  But in such a, case, the  court  must find  with  unerring certainty, that at least  five  persons were present. [426 H; 427 A-C] In  the present case, the charge definitely named  the  four appellants  who  have been convicted, and the two  who  have been  acquitted, a,% being the only members of the  unlawful assembly.  Since two of the named accused were acquitted the conviction  of the other four under s. 148 and Es.  304  and 307  read with s. 149 cannot be sustained on the  charge  as framed. [427 F-H] (2)  The appellants, however, were guilty of offenses  under ss. 304 Pan 1 and 307 read with s. 34.  The totality of  the circumstances  indicated that there was a preconcerted  plan and  a common intention to remove the thatch and  to  attack any person who resisted. [432 E-H] The common intention under s. 34, should be anterior in time to  the commission of the crime showing a  prearranged  plan

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and  prior concert., Generally, it has to be  inferred  from the  acts  or  conduct of some or all the  accused  and  the totality of relevant circumstances in the case, such as, the manner in which the accused arrived on the scene and mounted the  attack,  the  determination  and  concert  with   which injuries were caused by one or some of them the acts done by others  to  assist  those  causing  the  injuries,  and  the concerted  conduct  subsequent  to  the  commission  of  the offence  as for instance that all of them left the scene  of the incident together. [428 A-E] Dalip  Singh  & Ors.  V. State of Punjab [1954]  S.C.R.  145 Mohan  Singh v. State of Punjab, [1962] Supp. 3  S.C.R.  848 and  Krishna Govind Patil v. State of Maharashtra, [1964]  1 S.C.R. 678, followed. 424

JUDGMENT: CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 27  of 1969. Appeal  by  special  leave  from  the  judgment,  and  order dated .May 22, 1968 of the Allahabad High Court in  Criminal Appeal  No. 2636 of 1967 connected with Criminal Appeal  No. 2602 ,of 1967. D.   P.  Singh, V. J. Francis and Suresh Prasad  Singh,  for the appellants. O. P. Rana, for the respondent. The Judgment of the Court was delivered by P.   Jagmohan  Reddy,  J.  Six  accused  were  charged  with ,offenses under Section 302, read with Section 149,  Section 307  read with 149 and Section 148 of the Indian Penal  Code for having formed themselves into an unlawful assembly  with the  common  object  of demolishing the thatch  of  one  Ram Badal,  Complainant  P.W. 1 on 30th November 1967  at  about 9.30  a.m.  at Mohalla Alawalpur,  Qasba  Utraula,  District Gonda  and  for having committed the murder  of  Ram  Harakh alias  Harkhey  and  Jagga, the  brother  and  mother-in-law respectively  of said Ram Badal.  It appears that Ram  Badal had  applied  on  2-1-66 to  the  Notified  Area  Committee, Utraula  for permission to construct a thatch on  the  parti land.  Ram Tahal, accused filed an ,objection petition on 6- 1-66  objecting  to the construction of the  thatch  on  the ground  that  Ram  Badal was constructing  it  on  a  public highway, but when these objections were being enquired  into Ram  Badal  and Ram Tahal came to terms and entered  into  a compromise  by and under which it was agreed that Ram  Badal should leave six ft. wide passage between his house and  the house  of  Gharib  across  the  way.   Notwithstanding  this compromise  it  is alleged that accused Ram  Tahal  was  not happy and during the Dussehra festival in October 1966  when he wanted to take the Ramlila Viman procession through  that passage  Ram  Badal raised an objection on the  ground  that there  was no precedent for taking such a procession.   This dispute  was  however  settled by the  intervention  of  the Notified  Area Committee which took an undertaking from  the accused Ram Tahal that he would only take the Ranilila Viman procession through that way that year and in future when Ram Badal had completed his construction, the Ramlila procession could  only be taken through the six feet wide passage  that was  being  left, and if he could not do  so,  through  that passage  he  will not have any right to take  a  procession. This  settlement does not appear to have pacified Ram  Tahal and  it is stated that 10 or 11 days before  the  occurrence namely on the 19th November 1966 or 20th November 1966 after

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Ram Badal 425 had  constructed his Chhapar Ram Tahal asked him to pull  it down  and threatened him with consequences if he did not  do so.   Ram Badal however did not pull down his  Chhapar.   On the  30th  November 1966 at about 9.30 a.m. Ram  Tahal,  his sons  Prem, Mata Din, Pitamber, Pudki and his daughter  Tara came to the Chhapar of Ram Badal armed and began to pull  it down.  Ram Tahal was armed with a Karpa, Prem and Pudki with Ballams,  Pitamber and Mata Din with Lathis and Tara with  a Bahangi  which  is a long pole on the two ends  of  which  a weight  is bound by ropes and it is carried by  putting  the pole  on the shoulder.  When these accused  started  pulling the  Chappar  down  Ram  Badal’s  brother  Ram  Harakh,  the deceased,  who  was then present resisted the  move  of  the accused  and  was  beaten by the  accused.   On  Ram  Harakh raising  an alarm Ram Badal, Ori Lal son of Ram Harakh,  Ram Badal’s mother-in-law Jagga who lived nearby, Sukhraj P.W. 3 wife’s sister’s son of Ram Badal rushed to the scene.   They were  also  beaten  by the accused. It is the  case  of  the prosecution  that Ram Badal had a lathi which he wielded  to defend,  but  notwithstanding  this,  severe  injuries  were caused  on  Ori Lal, Jagga and Ram Harak and they  all  fell down  and  even  after they had fallen down  they  had  been struck.  Accused Prem is said to have struck Jagga with  his Ballam  after  she had fallen down.  On Ram  Badal  and  the injured  persons raising an alarm Kallu, P.W. 2, Kunnu  P.W. 6,  Gopi P.W. 7, Bhagirath or Bhagi P.W. 8, Sri Kishan  Lal, C.W.  1,  Chhotu C.W. 2 and others came to the spot  and  on their  intervention  the  accused ran  away  carrying  their weapons with them.  Jagga and Ram Harakh who were  seriously injured   were   taken  to  the  Police   Station,   Utraula accompanied  by Sukhraj P.W. 3, while Ram Badal P.W. 1  went there  on Rikshaw.  On the way to the Police  Station  Jagga expired.   Ram  Badal, P.W. 1 lodged the  First  Information Report  at 10.32 a.m. on the same day at the Police  Station which was six furlongs away from the place of the  incident. In  this report all the accused have been named.   P.W.  13, the  Station  House Officer before whom  F.I.R.  was  lodged started  investigation and deputed constables for  arresting the  accused  and sent Ram Badal, Ram Harakh,  Ori  Lal  and Sukhraj to Utraula Dispensary where Dr. B. C. Paul, P.W.  12 medically examined and treated them.  Subsequently on  5-12- 66 at about 3.15 p.m. Ram Harakh also died in the  Hospital. Accused Ram Tahal and Mata Din were arrested on the same day i.e. 30th November 1966 at 3.30 p.m. Of these Ram Tahal  was carrying  a blood stained Karpa and wearing a blood  stained Kurta  while  Mata Din was carrying a  blood  stained  Lathi whose  pieces  were  Exhibits 9, 10  and  11.   There,  were injuries  found  on both the above  accused.   Pitamber  was arrested  in  the evening of the same day at 8.45  p.m.  Ram Tahal and Mata Din were medically examined on 1-12-66 at the District Jail, Gonda 426 and  it was found that there were Ram Tahal 2  abrasion  and one  Traumatic swelling on the back of the left  hand  below the wrist.  On Mata Din were found 3 abrasions, one  abrased contusion  and one lacerated wound on the right  leg  middle side.  All the injuries on the accused were simple and could have  been  caused by a blunt weapon like a Lathi  and  were about  two  day,% old.  Accused Prem and  Pudki  surrendered themselves   on   6-12-66  before  the  Court   while   Tara surrendered  on  23-12-66 after proceedings  under  Criminal Procedure Code were taken against her. The Additional Sessions Judge, Gonda convicted Ram Tahal  of

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offence  under  section  148, 302/149,  307/149  I.P.C.  and sentenced  him to death under Sec. 302 read with 149  to  10 years  rigorous  imprisonment under Sec. 307/149  and  to  2 years  under  section  148 I.P.C. Accused  Mata  Din,  Prem, Pitamber, Pudki and Smt.  Tara were convicted and  sentenced to  life imprisonment under Sec. 302/149, 10 years  rigorous imprisonment  under  Sec.  307/149  and  2  years   rigorous imprisonment under Section 148. Two appeals were filed against this-one by Ram Tahal and the other  by  the rest of the accused.  In  the  latter  appeal Pitamber and Pudki were given the benefit of doubt and  were acquitted.  The appeals of Ram Tahal and Prem, Mata Din  and Tara  were  partly allowed and they were  acquitted  of  the offenses under Sec. 302 read with 149 and instead the  first two  namely  Ram Tahal and Prem were  convicted  under  Sec. 304/149 and sentenced to life imprisonment.  Appellants Mata Din  and Tara were convicted under Sec. 304/149  I.P.C.  and each  of them sentenced to 10 years  rigorous  imprisonment. Convictions  and sentences under the other  sections  namely under  Sec.  307/149 and Sec. 148 I.P.C. against all  the  3 accused  were maintained but the sentences were directed  to run  concurrently.  Against this Judgment the  accused  have appealed by special leave. The  first  question that has been urged before us  is  that none  of  the accused were charged for individual  acts  but were  found guilty under Sec. 304 Part I read with Sec.  149 which  requires the presence of five persons who  share  the common  object,  but  since 3 of  them  were  acquitted  the conviction  of  the appellant is illegal.  It is  true  that before  See. 149 which prescribes vicarious or  constructive criminal liability for members of an unlawful assembly which under Sec. 141 I.P.C. must consist of 5 or more persons  can be  called  in aid the Court must find  with  certainty,  as observed  by  Bose,  J. in Dalip Singh & Ors.  v.  State  of Punjab(1),  that there were at least 5 persons  sharing  the common (1)  [1954] (Vol.V) S.C.R. 145. 427 object.   However,  as pointed out in that case  "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." While saying so it was also pointed out that it is not necessary that in every case 5 persons must always be convicted  before  Sec. 149 can be applied,  because  it  is possible in some cases for Judges to conclude that though  5 were unquestionably there the identity of one or more is  in doubt,  in which case a conviction of the rest with the  aid of  Sec. 149 would be good.  In such a case the  Court  must say  so  with unerring certainty.  A 5-Judge Bench  of  this Court  in  Mahan  Singh v. State of  Punjab(1)  has  further reiterated this principle where it was pointed out that like Sec. 149 of the I.P.C. Sec. 34 of that Code also deals  with cases   of   constructive  liability   but   the   essential constituent  of the vicarious criminal liability under  Sec. 34 is the existence of a common intention, but being similar in  some  ways the two sections in some cases  may  overlap. Nevertheless  common  intention, which Sec. 34  has  as  its basis,  is  different  from the common  object  of  unlawful assembly.  It was pointed out that 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  must  be actuated  by  the  same  common intention which is different from some intention or  similar

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intention.   It  was also held in Krishna  Govind  Patil  v. State of Maharashtra(2), that it makes no difference whether the acquittal of some of the accused, was by giving them the benefit  of  doubt or on the ground that  evidence  was  not acceptable.   In  either case they cannot be  said  to  have conjointly  acted with the accused who is said to have  com- mitted an offence.  If they did not act conjointly with  him he  could not have acted conjointly with them and he  cannot therefore be convicted under Sec. 302 read with 34. The position in law is therefore clear and it appears to  us that  in  so  far  as the conviction  and  sentence  of  the appellants  under  Sec. 148; 304 read with 149 or  307  read with  149  are  concerned they cannot be  sustained  on  the charge  as framed against them which definitely named the  3 appellants as also the 3 acquitted accused as being  members of  an unlawful assembly, who had in the prosecution of  the common  object of such assembly, unlawfully  demolished  the thatch of Ram Badal and were guilty of an offence of rioting under  Sec. 148 and of murder of Ram Harakh and Jagga  under Sec. 302 read with 149 of the attempted murder of Ram Badal, Sukhraj and Orilal under Sec. 307 read with 149. (1) [1962] Suppl. (3) S.C.R. 848. (2) [1964] (1) S.C.R. 678.  L500Sup.CI/72 428 While  this  is so the question is whether  the  convictions under  Sec. 302 and 307 can be sustained on the ground  that they had a common intention to commit the said offence.  The learned Advocate for the Appellant strenuously contends that before  the appellants can be convicted under the  aforesaid section  read with Sec. 34 it must be shown that they had  a prior  concert  to commit the said offence which  cannot  be concluded on the facts of this case.  There is no doubt that a  common  intention  should  be anterior  in  time  to  the commission of the crime showing a prearranged plan and prior concert, and though, it is difficult in most cases to  prove the  intention of an individual, it had to be inferred  from the  act or conduct or other relevant circumstances  of  the case.  This inference can be gathered by the manner in which the accused arrived on the scene and mounted the attack, the determination  and concert with which the beating was  given or the injuries caused by one or some of them, "he acts done by others to assist those causing the injuries the concerted conduct  subsequent  to the commission of  the  offence  for instance that all of hem had left the scene of the  incident together  and other acts which all or some may have done  as would  help in determining the common intention.   In  other words, the totality of the circumstances must be taken  into consideration  in  arriving at the  conclusion  whether  the accused  had  a common intention to commit an  offence  with which  they could be convicted.  This Court had  in  Krishna Govind  Patil’s case already referred to earlier, held  that the  prearranged  plan may develop on ’he  spot  during  the course  of  the commission of the offence  but  the  crucial circumstance  is  that the said plan must  precede  the  act constituting the offence.  If that be so before a Court  can convict a person under Sec 302 or read with 34 of the I.P.C. it should come to a definite conclusion that the said person had  a prior concert with one or more persons named  or  un- named for committing the offence. This  being the approach it now remains to be  seen  whether the evidence in this case would justify a conviction of  the accused  under  Sec. 304 and 307 read with Sec.  34  of  the I.P.C.  The High Court no doubt held that the witnesses  did

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not  give  the  origin of the fight and there  was  thus  no independent  evidence  to  prove  that  the  fight  started, because  the  appellants  came and demolished  part  of  the thatch.  The High Court goes on to observe as follows :               "To  our mind, the quarrel being a sudden  one               and  the  injuries having been caused  in  the               heat  of passion, the case is covered  by  the               Fourth  Exception to section 300  I.P.C.  From               the injuries it cannot be said that the action               of the appellants was usually cruel.  Each one               of  the appellants appears to have caused  not               more than                429               one  or  two  injuries  to  the  fighters   on               complainant’s  side  but in view of  the  fact               that  the  spear injuries were caused  on  the               chest  which caused the death of  Smt.   Jagga               and  Ram Harakh, we think that the  appellants               have committed culpable homicide not amounting               to murder and are punishable under section 304               Part I read with S. 149 I.P.C." This  finding in our view is not justified on the  evidence. The  Trial  Court on an appraisal of the evidence  has  held that  the accused Ram Tahal wanted to take the law into  his own hands and along with his children had embarked upon  the demolishing of the complainants Chhapar on that fateful day. It  was contended that if he had such an intention he  would have  tried  to  demolish it immediately when  it  was  been constructed but we agree with the Additional Sessions  Judge that  his  no,  doing  so  at that  me  when  it  was  being constructed does no’ preclude him from having that intention subsequently.   According to P.W. 1, accused Ram  Tahal  had asked  Ram  Badal to pull it down and  threatened  him  with consequences on his failure to do so.  The dying declaration of  Ram  HaraKh also makes a reference about  this  dispute. The  finding  of  the Investigating  Officer  on  his  local inspection  shows  that 2 Puras of Khar and  2  Korons  were lying in the ground and a portion of Chhapar was pulled out. There  was human blood found on the scene of the  occurrence and  certain pieces of Lathi and Bahangi were found  thereon which   were  also  sent  to  the  Chemical   Examiner   and Serologist  . The dying  declaration of Ram Harakh to  which the  High Court does not make any reference much  less  gave any reason why that could not be relied upon shows that  the marpit  had started because the accused had pulled down  the Chappar and on being asked not to pull down the Chappar they had  struck  him  and  other persons  at  that  site.   This statement is quite consistent with the evidence of Ram Badal and  other eve witnesses of the occurrence that it  was  the accused  who were the aggressor and had come together  armed with  the  weapons to which we have  made  reference.   This would  clearly indicate the common intention of all of  them to achieve their object  of pulling down the Chhapar and  to do  so  with  force, if resisted. If as  a  result  of  this aggressive action by the accused who started beating     Ram Harakh  and  others including Ram Badal who came  to  defend their  Chhapar  from being demolished they had  a  right  of private defence in exercise of which if they had caused some injuries  to  the accused side that does not  exculpate  the action of the accused.  Even the High Court does not  reject the  evidence  that  the accused Ram Tahal  was  armed  with Karpa,  Prem was armed with Ballams, and Mata Din was  armed with  Lathis and Tara armed with Bahangi and had caused  the death ,of two persons, and severe injuries to 3 others. 430

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It  is  true  that according to the accused  Ram  Tahal  the dispute of the Chhapar had nothing to do with the occurrence in  question.   Ms version in his statement under  Sec.  342 before  the Additional Sessions Judge was that when  he  got knocked  over a brick of the Thiha and he dug out the  brick Harkhey and Ram Badal ran to beat him. , He fell at the feet of  Harkhey as to why he was calling his men for 3  Chhataks of  brick  bat.  Thereupon Orilal, Harkhey,  Ram  Badal  and Jagga  went to beat him with Lathis.  He shouted and  raised an  alarm  when accused Mata Din and Prem  came  there  with lathis and Tara with a Bahangi and they defended  themselves and  retreated  to  their  Angan.  In  the  Angan  they  had received  3 or 4 blows and they struck out in self  defence. When  they  fell  down Mata Din and he went  to  the  Police Station  Utraula.   It was there that Kunnu  announced  that Jagga  had expired.  He (Ram Tahal) had a  Karpa.   Pitamber was  in  school and Pudki was grazing cattle at  that  time. Accused  Mata Din and Prem had lathis.  This version of  Ram Tahal  would corroborate the prosecution evidence  that  Ram Tahal  was armed with a Karpa, Mata Din had lathi  and  Tara had a Bahangi though as far as the weapon in Prem’s hand  is concerned  he  does not admit that he had a  Ballam  in  his hand.   While we recognise that the statement of  Ram  Tahal either incriminating the other accused or in respect of  the weapons  in their hands, cannot be used against them,  there is ample justification for the Trial Court relying upon  the evidence  of the prosecution witnesses in holding  that  Ram Tahal had a Karpa, Prem a Ballam, Mata Din a lathi and  Tara a  Bahangi.   The  nature of the injuries also  to  a  large extent  corroborate the evidence of the eye  witnesses  upon whom the Trial Court relied. As  already  pointed out while the injuries on  accused  Ram Tahal and Matadin were simple injuries which could be caused by  blunt weapon, they are consistent with the  evidence  of P.W.  1  Ram Badal that he waived a stick  in  defence.   As against this, the injuries on the complainant and the  other injured  on his side, indicate a much more severe action  on the  part  of  the  accused and  that  also  with  dangerous weapons.  Ram Badal had one lacerated wound on the front  of the chin which could have been caused by some blunt  weapons like  a  lathi  and  another  punctured  injury  having  the appearance  of a cross of two lacerated wounds each   3/4" X 1‘/2" on the left side of the back, with surgical  emphysema round  the  wound which according to the Doctor  could  have been  caused  by some pointed weapon like the  Karpa.   Both these  injuries  were about 2 hours old at the time  of  the examination  and  could have been received about  9.30  a.m. that day, namely the day of the incident. 431 Ram  Harakh  the  deceased  had  4  punctured  wounds,   two lacerated and one abrasion.  The place where these  injuries were  given was : (1) a lacerated wound on the left side  of the skull, (2) punctured wound on the left hypochondrium, 4" below  the nipple, (3) punctured wound on the left  side  of the  chest below the axilla with surgical  emphysema  around the  wound  and  irregular  and  ill-defined  borders,   (4) punctured wound on the upper part of the back in between the two  axilla  with surgical emphysema around the  wound,  (5) punctured  wound  in the shape of a cross of  two  lacerated wounds each 4/5", (6) abrasion on the right mandibular angle and  (7)  a lacerated wound on the back of  the  right  ring finger  at  the  middle.   In the  opinion  of  the  Doctor, injuries 2, 3, 4 and 5 were grievous and had been caused  by a pointed blade with cross section which could be the  blade of  Karpa.  Injuries 1, 6 and 7 could be caused by  a  blunt

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weapon like a lathi. Orilal had 4 punctured wounds and 2 lacerated wounds.  These were  : (1) lacerated wound on the left side of  the  skull, (2)  punctured  wound  on the left side  of  the  face,  (3) punctured wound on the front of the neck on the back of  the chin,  (4)  lacerated wound on the cleft  between  the  left middle and ring fingers, (5) punctured wound with appearance of  a  cross  of two lacerated wounds  on  the  chest.   The margins  were  ill-defined,  (6) punctured  wound  with  the appearance  of a cross of two lacerated wounds each  1/2"  X 1/10"  on the left side of the back at the middle  near  the spine with surgical emphysema round the wound.  The  opinion of  the  Doctor  was that injuries 2, 3, 5 and  6  could  be caused  by a pointed blade which could be a blade of  Karpa; the  rest of the injuries could be caused by a blunt  weapon like lathi.  These injuries were also about 2 hours old. On  Sukhraj  P.W. 3 were found 2 punctured  wounds  and  one bruise.    These  are:  (1)  punctured  wound   having   the appearance  of a cross of two lacerated wounds each  1/2"  X 2/5"  on the front of the left forearm, margins  ill-defined and  slightly  inverted,  (2)  punctured  wound  having  the appearance  of  a lacerated wound each 1/5"X 1/ 10"  on  the back  of  the left forearm and (3) a bruise 4" X 1"  on  the right side of the back in the middle.  The medical  evidence is  that while injury No. 3 was simple injuries 1 &  2  were caused  by some pointed blade with 4 edges and square  cross section  like Karpa.  These injuries were also 2  hours  old and  could have been received at about 9.30 a.m. on the  day of the incident. On the deceased Jagga there were two abrased contusions  one on  the upper part of the nose and the other below the  left eye.   A  contusion on the left lower jaw and a  stab  wound with  sharp  margins  1/2"  X 1/3"  chest  deep,  below  the inferior angle 432 of the left scapula and 1" towards the outer part.  Internal examination had revealed that in the left lung on the  upper part  of the lower lobe there was a stab wound 1/2"  X  1/8" through  and  through  around  which  there  was  6  oz.  of coagulated  blood  and on the left ventricle  of  the  heart there  was  a  stab wound 1/3" X 1/8".  While  the  first  3 injuries  had  been caused by a blunt weapon  like  a  Lathi injury  No. 4 according to Doctor Gupta was caused  by  some sharp pointed weapon which could be a Ballam. These  injuries clearly show that they must have been  given by  Ram  Tahal who had a Karpa, Prem who had  a  Ballam  and Matadin  who  had  a Lathi.  They caused  injuries  to  five persons on the opposite side; on 4 of them severe  injuries, of these two died.  There is also evidence to show that Tara was  wielding a Bahangi and whether any of the injuries  can be  traced to her or not she was acting in concert with  the others in furtherance of their common intention. Further when on the shouts for help given by the complainant and  the injured, others came to their rescue, all  of  them ran away together.  There is no justification therefore  for holding as the High Court did that there was no evidence  to show  as  to  how  the quarrel started.   In  our  view  the totality  of  the circumstances indicate without  doubt  the inference  that there was a preconcerted plan and  a  common intention  to remove the thatch and to attack any person  if he resisted.  The accused in the furtherance of that  common intention  began to remove the Chhapar and when  Ram  Harakh obstructed,  they  beat him and others who  came  to  resist their attack and aggression. On  these  findings the Trial Court convicted  them  of  the

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offenses  of rioting, murder and attempted murder but  since two of the accused had been totally acquitted of all charges and  the others have been acquitted of the charge of  murder and  there  is  no appeal against these  acquittals  we  are unable  to say whether these findings by the High Court  are justified.   Nevertheless the appellants are clearly  guilty of offenses under Sec. 304 Part I read with Sec. 34 and also Sec. 307 read with 34 and accordingly we so convict them and substitute  these convictions for the convictions  of  which they  were held guilty by the High Court which we  have  set aside.  We however maintain the sentences awarded 433 to them.  On these findings Ram Tahal and Prem are sentenced to  life  imprisonment under Sec. 304 Part I  read  with  34 while Matadin and Smt.  Tara are each sentenced to 10  years rigorous imprisonment for the same offence namely 304 Part I read  with Sec. 34 I.P.C. Each of them is further  sentenced to 10 years rigorous imprisonment for offence under Sec. 307 read  with Sec. 34 I.P.C. The sentences on each of them  are directed  to  run concurrently.  The appeal  is  accordingly dismissed with the said modifications. V.P.S. 434