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PETITIONER: SUKHA AND OTHERS

       Vs.

RESPONDENT: THE STATE OF RAJASTHAN.

DATE OF JUDGMENT: 05/04/1956

BENCH: BOSE, VIVIAN BENCH: BOSE, VIVIAN JAGANNADHADAS, B. AIYAR, N. CHANDRASEKHARA

CITATION:  1956 AIR  513            1956 SCR  288

ACT:        Unlawful  Assembly-"Common  intention" and  "Common  object"        -Distinction-Duty of a Court of fact-Indian Penal Code  (Act        XLV of 1860), ss. 34,149.

HEADNOTE:        Common intention required by s. 34 of the Indian Penal  Code        and  common  object  set  out  under  s.  149,  though  they        sometimes  overlap, are used in different senses and  should        be kept distinct.  In a case under s. 149 there need not  be        a prior concert and meeting of minds, it is enough that each        has the same object in view and their number is five or more        and they act as an assembly to achieve that object.        When a crowd assembles and there is an uproar and people are        killed and injured, it is only natural for others to rush to        the scene with whatever arms they can snatch.  Some may have        an  unlawful  motive  but  others  may  not,  and  in   such        circumstances  it  is impossible to say that they  were  all        motivated by a common intention with prior concert.  What  a        court  of fact should do in such a case is to find from  the        evidence  which of them individually had an unlawful  object        in view, or having originally a lawful object in view  deve-        loped it later on into an unlawful one and if it finds  that        there  were  five or more such persons  who  acted  together        there would be an unlawful assembly.        Consequently, in a case where there were circumstances  from        which  the  courts  of fact could deduce  that  an  unlawful        object  developed with more than five to share it after  the        fighting started and they were satisfied that it did,  there        was  no reason why their concurrent decisions should be  set        aside.        This court will be slow to entertain a question of prejudice        when  details  are not furnished; also, the  fact  that  the        objection was not taken at an early stage will be taken into        account.

JUDGMENT:        CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 133  of        1955.

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      Appeal  by special leave from the judgment and  order  dated        the  10th  January 1955 of the High Court of  Judicature  at        Jodhpur in Criminal Appeals Nos. 57 & 83 of 1953 arising out        of  the  judgment and order dated the 26th May 1953  of  the        Court of        289        Sessions  Judge at Merta in Criminal Original Case No. 1  of        1952.        Jai  Gopal Sethi, K. R. Krishnaswami and K. R. Chaudhry  for        the appellants.        Porus A. Mehta and P. G. Gokhale, for the respondent.        1956.  April 5. The Judgment of the Court was delivered by        BOSE J.-Four persons were killed about 11 p.m. on the  night        of the 21st July 1951 and a number of others injured.   This        was  said  to be the result of a riot that occurred  in  the        village  Dhankoli.   Thirty six persons were  committed  for        trial.   Of  these,  two  died  during  the  course  of  the        proceedings.   The remainder were all charged under  section        325/149  of  the  Indian Penal Code  and  eleven  were  also        charged under section 302/149.        The  learned  Sessions Judge acquitted twenty  five  of  the        charge  under  section  325/149  and  convicted  nine.    He        acquitted  all  the eleven who were  charged  under  section        302/149 but convicted nine of them under section 325/149.        The  State  did  not appeal against the  acquittals  of  the        twenty five under section 325/149 nor did it appeal  against        the  acquittals of two of the eleven who were charged  under        section  302/149 but it appealed against the  acquittals  of        the  remaining  nine who had been  convicted  under  section        325/149.  These nine convicts also appealed.  The High Court        therefore  had  two  appeals  before  it,  one  against  the        acquittals  of  nine persons under section 302/149  and  the        other  by the same persons against their  convictions  under        section 325/149.        The  High  Court dismissed the appeal of  the  convicts  and        allowed  that of the State.  The convictions of  these  nine        persons  were  accordingly  altered to  ones  under  section        302/149 of the Indian Penal Code and the lesser sentence  of        transportation was given to each.        It is admitted on both sides that there was bad        290        blood  in  the  village Dhankoli between a  caste  known  as        Baories  on one side and three other castes of  the  village        namely, Jats, Dhobis and Khaties on the other.        The  case  for  the prosecution is that this was  due  to  a        dispute  over  a field that belonged to some  of  the  Jats.        There  were some court proceedings about the field in  which        Parsia  (one  of the Baories who was  killed)  had  appeared        against  the  Jats.  The accused Sukha,  Gumana,  Begla  and        Govinda  were in particular interested in this field and  so        bore a grudge against Parsia.        The  defence  also allege enmity.  Their case  is  that  the        enmity is due to the fact that the villagers decided not  to        employ the Baories for watch and ward work in the village as        they suspected that the Baories were responsible for certain        thefts  that  had occurred there.  The other castes  in  the        village  therefore did this work themselves by turns.   This        was  resented by the Baories and the allegation is that  the        Baories were responsible for the fight and attacked some  of        the others in the village and that led to a fight; but  none        of the appellants was concerned with it.        From  this  point  it  will  be  convenient  to  divide  the        narrative into a series of numbered steps.        1.On  the day in question, two of the  Baories,  Chhotiya        and Parsia, bad been to a neighbouring village to bid at  an

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      auction where the field, which according to the  prosecution        engendered  the dispute, was being sold.  They  returned  to        their  village about 11 p.m. and ran into the accused  Sukha        and Gumana (both Jats).  They were challenged and when  they        disclosed  who they were, Sukha and Gumana cried  out  "kill        them.  They had gone for the auction of the field." On  that        Sukha  fired a gun which he had with him and hit  Parsia  on        the legs.  Parsia fell down and Gumana bit him over the head        with  a  sword.  He also hit Chhotiya over the head  with  a        sword and Chhotiya        also fell down.        2.Parsia  and  Chhotiya at once cried out  for  help  and        their cries, coupled with the sound of the gun fire, brought        a number of persons to the scene.  The        291        number varies widely.  Chhotia (P.W. 8) says 30 to 35,  Ruga        (P.W.  1) says 50 or 60, Bedu (P.W. 2) puts it at 30  or  40        and so does Lachhuri (P.W. 10), while Ladia (P.W. 11) thinks        there were as many as 100 to 150.  There are other estimates        too, mostly in the neighbourhood of 30 to 40, but the  exact        number  does not matter because it is evident that  a  crowd        assembled.   Those  who did the attacking are said  to  have        been  about 30 or 40 but it is clearly proved  that  several        Baories were there and that some of them were assaulted.        The point of stressing these facts is to bring out the  fact        that  most  of  the persons there did not  assemble  for  an        unlawful  purpose and so did not form an unlawful  assembly.        The  problem  is to sort out those who  formed  an  unlawful        assembly  from  those who did not.  Mr.  Sethi  argued  that        there is no evidence to support a finding that there was  an        unlawful assembly because it is impossible to determine  who        came to attack and who did not.  But we will deal with  this        later.   For  the present, we will  continue  our  narrative        outlining the prosecution case.        3.After the gun was fired and Parsia and Chhotiya  struck        down,  a  large number of persons rushed to the  scene  and,        among  them, some 30 or 40 were armed with various kinds  of        weapons.   Of  these, Kamla, Balia, Todia and  Bhawana  (all        Jats) had pharsies, Gumana, Govinda and Jodbiya (also  Jats)        had  swords  and  the rest (Jats, Dhobis  and  Khaties)  had        lathis.  These persons also attacked Chhotiya and Parsia.        4.The  cries  of  Chhotiya  and  Parsia  attracted  Mana,        Govinda,  Pemla, Rambuxa and Gangli and some others.   These        persons are Baories.  This crowd of 30 or 40 turned on  Mana        and  Govinda and attacked them.  Sukha then fired his gun  a        second time and hit Mana on his left hand.        5.In the meanwhile, Ganesh and his wife Seruri  (Baories)        arrived and said "don’t beat, don’t beat".  Sukha and Gumana        said that they should also be beaten and thereupon these  30        or 40 persons started to beat them too and they fell down.        6.   After this, Parsia’s wife Lacbhuri came there        292        and  some  10 or 1 1 persons out of the original  30  or  40        started  to  chase  her.  But she ran away  and  managed  to        escape with only a slight beating.        7.While this was happening, the five Baories who had been        felled  to  the ground (Parsia, Ganesh,  Mana,  Govinda  and        Seruri)  started  to  cry out.  The ten or  eleven  who  had        chased Lachhuri came back and on hearing the cries of  these        five  on  the ground, Sukha and Gumana said that  they  were        crying and should be killed outright.  On that these  eleven        persons  divided into three groups and attacked the five  on        the ground as follows:        Parsia was beaten by Sukha (with a pharsi), Jeewana (dangri)        and Chokla (dangri).

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      Mana  and  Govinda  were beaten  by  Gumana  (sword),  Balia        (pharsi) and Jankiya and Naraina (lathis).        Ganesh  was  beaten by Bhawana  (dangri),  Govinda  (sword),        Kumla (pharsi) and Begla (dangri).        All four died on the spot.        The  accused were charged as follows.  One group  consisting        of  25  persons were charged under section  325/149  of  the        Indian Penal Code for intentionally beating, along with  the        other accused,        1.   Chhotiya        2.   Seruri        3.   Parsia        4.  Mana        5.   Govinda and        6.  Ganesh.        At  a later stage, the following sentence was added  to  the        charge:        "which you inflicted as a member of an unlawful assembly  in        prosecution  of  its common intention".  These  twenty  five        were acquitted and we are not concerned with them except  to        note  that  they were not concerned with that  part  of  the        occurrence which we have set out as steps 6 and 7 above.        The charge against the remaining eleven can be divided  into        two parts.  Under the first, each, except Sukha, is  charged        with  beating  the Baories Parsia,  Mana,  Govinda,  Ganesh,        Chhotiya, Seruri, etc.  "along with other accused".  Five of        the eleven are said to        293        have  beaten  them with "swords and  lathis";  another  five        "with  lathis, etc." while the eleventh, Sukha, is  said  to        have  fired  at Parsia and Mana "as a result of  which  they        fell down".  Then each charge continues--         "and  when  all  had  fallen down  as  a  result  of  these        injuries".        After  that  the charges divide off into three  groups:  One        group  charges  (1) Gumana, (2) Naraina, (3) Balia  and  (4)        Jankiya  with beating Govinda and Mana, "who were  groaning,        with lathis with intent to kill them till they were actually        killed".  The next group charges (1) Jeewana, (2) Sukha  and        (3)  Chokhla  with  hitting Parsia with  lathi  blows  "with        intent to murder him till he died".  The third group charges        (1)  Begla, (2) Govinda, (3) Kumla and (4) Bhawana with  as-        saulting  Ganesh with lathis with intent to murder  till  he        died.        The following sentence was also added in the end of each  of        these charges:        "And  you  did this as a member of an unlawful  assembly  in        prosecution of its common intention".        There has been some confusion in both the Sessions Court and        the  High  Court  between  "common  intention"  and  "common        object".  It is true the two sometimes overlap but they  are        used in different senses in law and should be kept distinct.        In a case of unlawful assembly or riot we are concerned with        a  common  object.  However, we are satisfied that  has  not        caused  any prejudice.  But the reason why we have  set  out        these  charges  at some length is because  counsel  for  the        appellants  argued that the prosecution case is  that  there        were two separate assemblies, one of twenty five persons  to        beat six specific persons and another of eleven to kill them        in  three  groups.   He  argued that  the  twenty  five  who        constituted the first assembly have all been acquitted; that        the  only  material from which an unlawful assembly  can  be        inferred  in the other case is the instigation of Sukha  and        Gumana  for  a  second time after  they  bad  returned  from        chasing   Lachhuri.    That  story,  he   said,   has   been

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      disbelieved, so all must be acquitted.        It will be necessary at this stage to set out the        294        findings  of  the two lower courts.   The  learned  Sessions        Judge  starts  by rejecting the evidence of Ruga  (P.W.  1),        Bodu  (P.W.  2) and Bhagwatia (P.W. 3) on  the  question  of        identification  of  any of the accused and the  evidence  of        Arjun (P.W. 4) about the conspiracy to beat up the  Baories.        But  he  finds  that the evidence of  the  Baori  witnesses,        Chhotiya  (P.W.  8), Lachhuri (P.W. 10),  Ladia  (P.W.  11),        Seruri  (P.W. 12), Gangli (P.W. 13) and Pemla (P.W.  14)  is        consistent "so far as these II accused are concerned regard-        ing their beating 4 persons to death and causing injuries to        Lachhuri,  Ganesh’s  wife, Seruri and Chhotiya "  Later,  he        states     "From    the    evidence    of    these     Baori        witnesses.................  it  is found that  these  eleven        accused were involved in the beating of the injured persons.        Whether  they  formed part of a bigger assembly is  not  now        material because I have already discussed the cases of other        accused  and  given  them benefit of  doubt.   These  eleven        accused  even  amongst themselves being more  than  five  in        number   could  be  regarded  as  members  of  an   unlawful        assembly".        But the learned Judge only accepted this story in part.  He-        believed  Chhotiya (P.W. 8), Seruri (P.W. 12), Gangli  (P.W.        13) and Pemla (P.W. 14) in so far as they stated that  Sukha        had  a gun and that Sukha used it against Parsia  and  Mana,        but  he did not accept the evidence of Chhotiya (P.W. 8)  in        so far as he said that Gumana hit Chhotiya with a sword.  He        also  rejected  the prosecution version that  the  incidents        occurred  in  two parts, first with a bigger  assembly  that        beat  all the accused and next with a smaller one  that  ran        after  Lachhuri and beat her and then returned to  beat  the        others to death at the instigation of Sukha and Gumana.   On        this part of the case, the learned Sessions Judge found that        "  whatever beating was done was done immediately after  the        scuffle between Chhotiya and Parsia and Sukha and Gumana and        Gumana and Naraina, and those accused who had arrived on the        spot. Nobody instigated anybody". (Para 103).        It  was  argued on behalf of the defence  that  the  learned        Sessions Judge discarded the evidence about        295        instigation  in  toto.   Counsel  for  the  State,  however,        contended that this passage refers to the second instigation        which is said to have been given after the eleven had chased        and  beaten Lacbhuri and returned to finish off  the  others        who were lying on the ground.  We think that is right.        In paragraph 101 of his judgment the learned Sessions  Judge        set  out the fact that the prosecution witnesses divide  the        incidents  into  two parts: one in which a  larger  assembly        beat  all the injured persons and the other in which  eleven        killed the four deceased persons at the instigation of Sukha        and Gumana.        In  paragraph 102 be set out reasons why he was not able  to        believe this story.  The first was because          "Ladia (P.W. 11) did not state in his statement before the        police  that  after  beating Lachhuri, when  ten  or  eleven        persons  had returned then at the instigation of  Sukha  and        Gumana the injured were again beaten to death".        Then, after setting out four more reasons, the learned Judge        reached the conclusion just enumerated in paragraph 103.        In paragraph 117 he said-        "Leaving Begla and Govinda, I am fully convinced that Sukha,        Gumana,  Naraina,  Kumla, Balia, Jeewana,  Chokhla,  Bhawana        Khati and Jankiya did commit rioting with the common  object

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      of beating the Baories".        In paragraph 118 he said-        "I am not convinced that the intention of all these  accused        was to murder the whole lot of Baories.............."        In  para  119-"The  accused did give sound  beating  to  the        injured".        He concluded that no common object to kill could be  deduced        but held that a common object to beat was clear.  As he  was        unable  to determine which accused gave the fatal  blows  be        convicted all under section 302 read with section 149 of the        Indian Penal Code.        We  think it is clear from this judgment, read as  a  whole,        that the learned Sessions Judge disbelieved        296        the  story  of instigation at any stage because  if  he  had        believed even the first instigation, a common object to kill        would have emerged.        We are unfortunately not able to obtain much assistance from        the  judgment of the learned High Court Judges.   They  have        not  analysed  the  evidence  and  have  not  reached  clear        findings  about a common object due in some measure  to  the        fact  that  they  do  not appear  to  have  appreciated  the        difference between a common object and a common intention.        They hold that six witnesses can be relied on to the  extent        that  "the villagers were armed with guns,  swords,  farsies        and  lathis".  They do not believe all that these  witnesses        say because they hold        "Though,  therefore,  we do not believe  that  these  eleven        persons  deliberately murdered the four injured Baories  who        were lying there saying that they should be killed, there is        no doubt in our minds that these eleven persons who have all        been  mentioned by these six witnesses were  certainly  seen        taking more active part in this incident".        Then they hold-        "We  are,  therefore, satisfied on the statements  of  these        witnesses that the incident took place in the main as stated        by them and that the prosecution has given the right version        of the affair".        Next,  they  hold  that  the fact that  a  large  number  of        villagers,  including the nine appellants, turned  up  armed        with  various  weapons immediately they  beard  the  quarrel        between  Chhotiya and Parsia on the one side and  Gumana  on        the other         "shows  that  there must have been some  consultation  from        before and that these persons arrived in prosecution of  the        common object.............."        And they add this reason:        "There  is  also the evidence of the  prosecution  witnesses        that  as  the Baories came, some one or the other  of  these        accused  incited  the rest of the villagers to beat  up  the        Baories".        From this they conclude that there was an unlawful  assembly        with the common object of beating up the Baories.        297        This  is  very  unsatisfactory.   The  learned  Judges  were        dealing with an appeal against an acquittal and though  they        have  allowed the appeal they have not been  specific  about        which part of the evidence they rely on in support of  their        findings nor do their conclusions follow logically-from  the        premises on which they are based.        Take, for example, the finding about prior consultation.  In        the  first place, no prior consultation is required  when  a        common   object  is  in  question.   The  essence   of   the        distinction between common object and common intention  lies        there.  In the next place, the six witnesses, who are relied

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      on,  say that a crowd of 30 or 40 persons assembled.   Among        that  crowd were Baories because three Baories  (other  than        Parsia and Chhotiya) were killed and others injured.  It  is        also  evident that some of these Baories must have had  some        sort  of  weapons because three of the  accused  had  slight        injuries  on their person and one a fracture.  The  evidence        discloses that there had been thefts in t the village.   The        uproar occurred at 11 in the night.  In those circumstances,        it  would be natural for the villagers to rush to the  scene        and  arm  themselves with whatever came to band.   Some  may        have  been  motivated by an unlawful motive but  many  would        not, and to deduce a common intention with prior concert  in        such  circumstances  is  impossible.   A  common  object  is        different and courts of fact are entitled to conclude on the        evidence  that  has  been accepted that some  of  those  who        rushed to the scene went there with the object of beating up        persons  whom they thought to be thieves and not  merely  to        apprehend  them or defend their properties; in other  words,        that  some  of those persons individually  had  an  unlawful        object  in  view.  If each bad the same object,  then  their        object  would be common and if there were five or more  with        this  object,  then  they would form  an  unlawful  assembly        without any prior concert among themselves.        Next, take the High Court’s finding about incitement.   They        have rejected the version given by the prosecution witnesses        because they hold that the        298        story  about the second beating is an improvement  and  also        because  they  disbelieve the evidence that  indicates  that        these eleven persons deliberately murdered the four  injured        Baories.        But  the  only evidence about incitement is that  Sukha  and        Gumana  called  on the others to kill Barsia, and  later  to        kill  the others.  The incitement was quite clearly to  kill        and not merely to beat.  If this is rejected, then there  is        no evidence about incitement, so we are left in the dark  to        know  what  the learned Judges based  their  conclusion  on.        That has left us with the task of finding whether there  is,        or could be, any proper basis for these convictions.        Now,  as  we understand the learned Sessions Judge,  he  has        believed  the first part of the story which we have set  out        as  step  No.  I except the portion  that  speaks  about  an        incitement  to  kill.  He finds that there was  the  meeting        between  Sukha  and Gumana on the one side  and  Parsia  and        Chhotiya on the other. He says-        "It  can safely be deduced from the incidents as related  by        the  witnesses  in  this  case that  in  the  beginning  the        fighting was between a couple of persons only and on hearing        their cries their relatives, friends and relations and other        villagers  reached  the spot and some of the  villagers  did        beat the Baories".        Pausing  there,  it is evident that there  was  no  unlawful        assembly  when  the beating started; nor can it  be  deduced        that  all the persons who rushed to the scene,  whether  the        number  was  30  or 150, formed an  unlawful  assembly.   We        therefore  have to scan the evidence carefully to  see  what        happened after that.  The finding is that the eleven accused        who  were  charged for the murder were all involved  in  the        beating  of the injured persons.  That satisfies one of  the        ingredients of rioting, namely the presence of five or  more        persons.   But that of course is not enough.  There must  in        addition,  be  an "assembly" and that assembly must  have  a        "common object" and the object must be "unlawful".        But a common object is different from a common intention  in        that it does not require prior concert and

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      299        a common meeting of minds before the attack, and an unlawful        object  can develop after the people get there.  It  is  not        for  us to re-assess the evidence in special leave.  All  we        can say is that there are circumstances from which courts of        fact  could  deduce that an unlawful object  developed  with        more than five to share it once the marpit bad started;  and        as two courts of fact are satisfied that it did, there is no        reason  for  us to interfere.  Persons who  had  come  there        quite  lawfully, in the first instance, thinking there  were        thieves  could well have developed an intention to  beat  up        the "thieves" instead of helping to apprehend them or defend        their properties; and if five or more shared the object  and        joined in the beating, then the object of each would  become        the common object.        This  is not to say that all those present were  members  of        that assembly.  The presumption of innocence would  preclude        such  a  conclusion.  Those who rushed to the scene  in  the        circumstances disclosed must be presumed to have gone  there        for  a  lawful  purpose  even  if  they  were  armed.    The        apprehension  of marauders who prowl the town at  night  and        the defence of person and property are lawful objects.   But        when  that object is exceeded and persons begin to  beat  up        the  suspects  the  act of  beating  becomes  unlawful,  for        private  persons are no more entitled to beat  and  illtreat        thieves than are the police, especially at a time when there        is  nothing beyond suspicion against them.  But if  five  or        more exceed the original lawful object and each has the same        unlawful intention in mind and they act together and join in        the  beating,  then  they in  themselves  form  an  unlawful        assembly.  There is no difference in principle between  this        and  a case in which the original object was unlawful.   The        only  difference is that a case like this is more  difficult        to establish and must be scrutinised with greater care.  But        that  scrutiny  is here and we are satisfied that  there  is        evidence in this case on which courts of fact could base the        conclusion that they have reached.        Now, did these eleven persons constitute an assembly or were        they there individually without any        300        common  factor  to link them together?  That, we  think,  is        easily  answered.  It is clear that each (barring Sukha  and        Gumana who were already there) assembled at the spot because        of the cries of Parsia and Chhotiya and because of the noise        of  the  fight.   That imports a common  factor  into  their        meeting  and  links  them together as  an  assembly.   Their        object  in  assembling may have been innocent but  the  fact        that a common factor like this induced them to come together        constitutes  them  into an "assembly" though  not,  on  that        evidence alone, into an unlawful assembly.        We  next  have to see whether any of them  had  an  unlawful        object in view.  The object of Sukha and Gumana was  clearly        unlawful.   Now the evidence which has been  believed  shows        that the other nine actually joined in the beating and  that        they  did this after Sukha had fired his gun at  Parsia  and        Parsia  had fallen to the ground.  It also shows that  these        others  turned on Parsia’s relations and friends  when  they        came  to  their support.  Therefore, whatever  the  original        object of each may have been, it achieved a unity of purpose        the  moment  the others joined in and  continued  to  assist        Sukha  and  Gumana  and helped them to  beat  up  the  other        Baories  who  came to Parsia’s help.  It is not  a  case  of        stray  sporadic acts but indicates a certain  continuity  of        purpose,  each  striving  to achieve the  same  end,  namely        either  to  help Sukha and Gumana in beating up  Parsia  and

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      Chhotiya  and those who came to help them or to join in  the        beating  for  ends  of their own.   But  the  commonness  of        purpose  is an inference of fact which courts of fact  would        be entitled to make.  It does not matter whether the  others        joined  in  because of an initial  instigation  or  whether,        seeing the assault in progress, they joined in on their  own        account,  because so long as each bad the object of  beating        up  Parsia  and  Chhotiya  and  those  who  came  to   their        assistance, that would make their object common.        The  distinction  between the common intention  required  by        section  34 of the Indian Penal Code and the  common  object        set out in section 149 lies just        301        there.   In  a case under section 149 there need  not  be  a        prior meeting of minds.  It is enough that each has the same        object  in  view and that their number is five or  more  and        that  they act as an assembly to achieve that  object.   All        these features are to be found in that part of the  evidence        which has been believed.  Therefore, on these findings which        the courts of fact are entitled to reach, the object of  the        assembly  was  unlawful, but up to this  point  the  highest        common  denominator was merely to beat and not to kill.   Up        to that point, the convictions of the learned Sessions Judge        under section 325/149, Indian Penal Code, are  unassailable.        The  next  question  is whether, that being  the  case,  the        convictions  by the High Court under section 302/149 can  be        upheld.        Neither  the Sessions Judge nor the High Court believe  that        there  was  any  common intention  to  kill,  therefore  the        convictions  for  the  more  serious  offence  can  only  be        sustained  under section 149 if it can be shown (1) that  an        actual killing of some of the persons attacked was likely to        result  from the beating which formed the common object  and        (2)  that  each  person so convicted knew that  might  be  a        likely result.        Now  so far as Sukha and Gumana are concerned, there can  be        no  doubt.   They  started the fight  with  deadly  weapons.        Sukha fired at least twice and bit two persons.  He  himself        may  not have had an intention to kill and indeed  the  fact        that  the  wounds are on non-vital parts must be used  as  a        factor in his favour, but any person who carries a fire  arm        at  that hour of the night and uses it and then continues  a        fight after an excited crowd has assembled and when at least        nine of them rush in to join in the beating after his  first        shot  must  know either that somebody is likely  to  deal  a        fatal  blow or at least that the cumulative effect of  blows        inflicted by a number of persons armed with lathis is likely        to  cause death from shock.  Riots of this kind  are  common        and  death  frequently results, therefore, not  only  was  a        killing a likely consequence of such an assault conducted in        this  fashion  but  Sukha  and Gumana  as  men  of  ordinary        intelligence must have known that.        302        Much the same considerations apply in the case of the  other        appellants.   They rushed in to hit persons who had  already        been  fired on and who had been felled to the ground.   They        were  in the midst of a crowd which could hardly  have  been        calm and impassive and they joined in with several others to        beat them up.  Any man of reasonable intelligence would have        known that somebody would be likely to be killed in a  melee        like  that.   Therefore,  the  requisite  knowledge  can  be        imputed to them also.        Two   questions  remain.   One  was  directed  against   the        reliability  of  that  part of the evidence  that  has  been        believed.  The argument, for all its repetition, length  and

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      eloquence,  was  the hackneyed one that when one part  of  a        witness’ evidence is disbelieved, it is unsafe to act on the        rest  of  his testimony.  The answer is  equally  hackneyed,        namely  that  judges of fact have the right to do  this  and        that  this  is  not a court of appeal  when  it  acts  under        article  136.  The findings about this are  concurrent,  so,        following  our  usual  practice, we decline  to  review  the        evidence.        The  other  is  that  the absence  of  this  in  the  charge        occasioned prejudice.  We have recently decided that we will        be slow to entertain question of prejudice when details  are        not furnished; also the fact that the objection is not taken        at an early stage will be taken into account.  There is  not        a hint of prejudice in the petition filed by the  appellants        here  in the High Court for leave to appeal to  this  Court;        nor  was this considered a ground for complaint in the  very        lengthy  and argumentative petition for special leave  filed        in  this Court.  The only complaint about prejudice  was  on        the score that there was no proper examination under section        342  of  the Criminal Procedure Code.  We decline  to  allow        this matter to be raised.        The appeal fails and is dismissed.        303