inal Appeals Nos 10  11 of 1971
Appeals by Special Leave from the Judgment  Order dated the 19th February 1970 of the Allahabad High Court in Criminal Appeals Nos 20 194 and 582 of 1969
OP Rana for the appellant
J P Goyal for respondent Nos 3 5 In Crl
A No 1071 and respondents In Crl A No 11 of 1971
The Judgment of the Court was delivered by CHANDRACHUD J
Eighteen persons were tried by the Additional Sessions Judge Agra for various offences arising out of the murders of five persons  Gajraj Singh Bhairon Singh Budh Singh Pancham Singh and Amar Singh
The learned Judge acquitted eight persons and convicted the remaining ten
Nine out of these ten were convicted under sections 302 and 201 road with section 149 of the Penal Code
Seven out of these nine were sentenced to death and the remaining two to imprisonment for life
The tenth to be convicted was held guilty under section 201 read with section 149 and was sentenced to imprisonment for seven years
In appeals filed by the accused the High Court of Allahabad substantially modified the judgment of the trial court
It convicted only one accused Dev Chand under section 302 and upheld the sentence of death imposed on him by the trial court
It also upheld his conviction and sentence under section 201 read with section 149
The conviction and sentence of eight of the accused under section 302 read with section 149 was set as  de by the High Court
it however upheld the conviction and sentence of five out of those under section 201 read with section 149
These appeals by special leave are filed by the
State of Uttar Pradesh against the judgment of the High Court acquitting eight out of the nine accused who were convicted by the trial court under section 302 read with section 149
Thus the main questions to be considered in this appeal are whether the respondents were members of an unlawful assembly whether the common object of that assembly was to commit the murder of the five persons and whether the respondents or any of them can be held variously liable for those murders
12 255 Sup C 175 420 The incident leading to the prosecution of the respondents occurred on November 5 1967 at Pilwa District Agra LJP
There were disputes between the villagers regarding the right to take water from a tube well as the revenue authorities were unable to fix the turns for taking water Mahipat Singh the absconding accused was appointed as a Thokdar to regulate the distribution of water
On or about November 1 1967 the deceased Gajraj Singh cleared the channel leading to his field in an attempt to take water from the well
The Thokdar Mahipat Singh asked Gajraj Singh to postpone taking the water until he himself had finished his turn
Two days before the incident Mahipat Singh told Gajraj Singh that he could take water for irregating his field from the eve of Saturday the 4th November
Gajraj Singh accordingly started irrigating his field on Saturday but Mahipat Singh objected once again
Gajraj Singh and his companions affirmed their intention to take water at all costs whereupon Mahipat Singh is alleged to have left the field uttering some threats
A little after sunrise on the next day the 5th November an armed group of over twenty persons including the respondents went to Gajraj Singh s field
Mahipat Singh ordered his companions to divert the water from the field of Sarnam Singh who it seems was taking water from the well after Gajraj Singh had finished irrigating his field
On an objection being raised by Gajraj Singh and his companions the accused are alleged to have opened fire as a result of which at least four out of five persons died instantaneously
Those four are Gajraj Singh his brother Bhairon Singh his nephew Budh Singh and a person called Pancham Singh
Amar Singh the son of Gajraj Singh was also injured by a gun shot but according to the persecution he survived for some time The dead bodies of four victims were then dragged by the accused over a distance of about a furlong
Amar Singh was forced to walk the distance
At a spot near a cattle shed six of the accused who were armed with Gandasas beheaded Amar Singh and severed his arms and legs
Thereafter they decapitated the four dead bodies and severed their limbs
They smashed two nearby huts collected a little wood asked one Nanney Khan since acquitted to lend petrol from his jeep sprinkled the petrol on the wood and after setting fire there to threw the five dead bodies into the fire
The severed heads were carried away as souvenirs
So gruesome is the manner of murder
The prosecution led the evidence of two eye witnesses Punjab Singh PW 1 and Sant Ram PW 2
While Amar Singh was being hacked to death Punjab Singh asked Sant Ram to give information of the incident to a member of the Armed Constabulary who was posted at Noorpur a distance of 3 miles
Punjab Singh himself went to the Firozabad police station and lodged the First Information Report at about 8 am After receiving the report from Sant Ram a Head Constable of the Armed Constabulary rushed to the place of occurrence with three other Constables and found the dead bodies burning
He extinguished the fire and recovered parts of the bodies from the fire
421 Out of the twenty four accused named in the First Information Report six had absconded
The remaining eighteen were put up for trial with the result stated earlier
We see great difficulty in understanding the approach and reasoning of the High Court
The High Court accepted the evidence of motive and held that the village was divided into two factions one headed by the deceased Gajraj Singh and the other by Mahipat Singh
The High Court also found specifically that on the morning of November 5 1967 the party of the accused under the leadership of Mahipat Singh went to the field of Gajraj Singh armed with gun and other weapons
According to the High Court considering the number of persons who were murdered the distance over which the dead bodies were dragged and the manner in which those bodies were thrown into the fire there could be no doubt that the actual number of accused who took part in the incident must have been considerably more than five
On the basis of these findings the High Court proceeded to consider whether the accused could be said to be members of an unlawful assembly
It answered this question in the negative on the ground that Mahipat Singh and his partymen had gone with guns and Gandasas to Gajraj Singh s field in order to prevent Gajraj Singh from taking the water of the well and not for the purpose of committing the murders
This is how the High Court explains its point of view As Gajraj Singh and his partymen were waiting in fields armed with spears and Lathis so Mahipat Singh and his party men had also equipped themselves with guns and other weapons
But it could not be assumed that they had themselves collected there to commit murders and therefore were members of an unlawful assembly
The High Court seems to have thought that as a Thokdar Mahipat Singh could regulate the distribution of water and was entitled to enforce his authority in such manner and by such means as he thought proper
In coming to this conclusion the High Court fell into a grave error
Section 141 Penal Code provides by its Fourth Paragraph that an assembly of five or more persons is designated as an unlawful assembly if the common object of the persons composing it is inter alia to deprive any person of the use of water or to enforce any right or supposed right by means of criminal force
The High Court found that Ma Mahipat Singh and his followers went to Gajraj Singh s field with guns and Gandasas in order to enforce the right of Mahipat Singh to regulate the distribution of well water
Mahipat Singh may be assumed to have an unqualified right to regulate the distribution of water but when he collected a gang of twenty odd people and marched to Gajraj Singh s field to enforce that right real or supposed he was clearly collecting an unlawful assembly
The only question which the High Court had then to consider was as to what was the object of that unlawful assembly
422 The High Court did advert to this question but it again fell into the error of supposing that if there was a regular confrontation between the rival factions it could not be said that the common object of the unlawful assembly was to commit the murders
On this aspect the High Court has expressed its view thus They no doubt went heavily armed in order to use force if necessary to carry out their common object
After they carried out their common objects it appears there was con frontation between the parties which led to the main incident resulting in the five deaths
 If the accused went to Gajraj Singh s field heavily armed and if they were determined to carry out their object by the use of criminal force it is difficult to appreciate how it could be said that the limited object of the assembly was to redivert the water from the field of Gajraj Singh
Evidently the attention of the High Court was not drawn to the Explanation to section 141 Penal Code by which An assembly which was not unlawful when it assembled may subsequently become an unlawful assembly
Assuming for the sake of argument that there was some slender justification for the view that the assembly was initially not actuated by an unlawful object it is impossible to agree that the assembly did not even subsequently become an unlawful assembly
The savage shooting the decapitation the consignment of dead bodies to the fire and the flight back with the severed heads as trophies are circumstances too glaring to justify the merciful findings of the High Court that the five murders arose out of a confrontation that the common object of the assembly was not to commit the murders and that therefore none of the accused can be held vicariously liable for the acts committed by the other members of the assembly
The High Court missed the essence of section 149
That section has two facets
Every member of an unlawful assembly is by that section rendered liable for the offence committed by any member of the assembly in prosecution of its common object
That fixes vicarious liability of the members of an unlawful assembly for acts done in prosecution of the common object of the assembly
But such liability is not limited to the acts done in prosecution of the common object of the assembly
It extends even to acts which the members of the assembly knew to be likely to be committed in prosecution of that object
 The High Court having found that the common object of the assembly was to re divert the water by use of force if necessary and that Mahipat Singh and his followers had armed themselves with guns and Gandasas for carrying out that object the conclusion was unavoidable that the members of the assembly knew that the prosecution of even the limited object of the assembly was likely to result in the murder of the opposition
This latter aspect was overlooked by the High Court
There can thus be no doubt that Mahipat Singh and such of the respondents whose presence is established formed an unlawful as embly that the common object of the unlawful assembly was to commit the murders of Gajraj Singh and his men that even assuming that the 423 common object was to re divert the water if necessary by the use of force the members of the assembly knew that in prosecution of such an object murders of the opponents were likely to be committed and therefore every member of the unlawful assembly would be vicariously liable for the acts committed by any member of that assembly
Three of the respondents Niwedan Singh Bhikham Singh and Nawab Singh have been convicted by the High Court under section 201 read with section 149 on the basis of evidence showing that they beheaded the victims severed their limbs and threw their bodies in the raging fire
Two more Karam Singh and Arjun Singh have been convicted similarly as their presence was clearly established
The former had a spear injury on his chest while the clothes of the latter were stained with human blood
If these accused were members of the unlawful assembly and had taken a leading part either in the first or the final stage of the incident they cannot escape their liability for the quintuple murders
There was but one unlawful assembly and its members were animated by a unity of purpose
Some fired the fatal shots some severed the limbs of the victims some threw the dead bodies into the fire and some led the victory march parading the heads of victims as prizes
But whether one did this or that act there was identity of interest among the members of the unlawful assembly and they were actuated by a common object
Their varying participation in the different stages of the incident was directed at achieving the common object first the murders and then the destruction of evidence establishing the murders
The steps and therefore the acts in prosecution of the common object were manifold but the incident was one
The High Court has itself found that  all those who took part in the incident along with Dev Chand Karan Singh Arjun Singh and the Gandasa men also took part in taking the dead bodies to the field of Bedari and tried to do away with the evidence of the murders by removing the heads and burning the dead bodies
 We are unable to appreciate how in view of this finding the High Court could say in the very next sentence that their conviction under section 302 read with section 149 IPC has to be set aside
This part of the High Court s judgment therefore requires to be reversed
In addition to their conviction under section 201 read with section 149 and for the other minor offences the five respondents mentioned above shall stand convicted under section 302 read with section 149 Penal Code
As regards sentence a plausible distinction may be made between the cases of Niwedan Singh Bhikham Singh and Nawab Singh oil the one hand and of Karan Singh and Arjun Singh on the other
The three first named are proved to have been armed with Gandasas
The High Court has found in agreement with the view taken by the trial court that there was reliable corroboration to the evidence of the eve witnesses in regard to the part played by these three persons They decapitated the dead bodies and threw the dismembered bodies 424 into the fire
Decapitation of a dead body is of course not murder for section 300 of the Penal Code shows that only homicide  though culpable homicide can be murder
But considering the grisly behaviour of these three respondents there can be no doubt that they were the more prominent members of the unlawful assembly and without their active participation the assembly could not have achieved its common object
We therefore restore the order of the Sessions Court imposing the sentence of death and the other concurrent sentences on Niwedan Singh Bhikham Singh and Nawab Singh
Karan Singh and Arjun Singh were undoubtedly members of the unlawful assembly but the evidence is not clear enough to show how they were armed or if at all
The Sessions Court was therefore justified in imposing the lesser sentence of life imprisonment on them
We confirm that sentence and the other concurrent sentences imposed on them by the Sessions Court
As regards the remaining three respondents Mahendra Singh Malkhan Singh and Bachan Singh the High Court appears to have felt considerable doubt about their presence
Some of the absconding accused were also armed with guns and the evidence is not clear either regarding the presence of these three accused or about the acts alleged to have been committed by them
The two eye witnesses were so placed that they may not have been in a position to notice that Mahendra Singh Malkhan Singh and Bachan Singh came along with Mahipat Singh and others or that they were armed with guns
Left to ourselves a different view of the evidence may not be ruled out but that is not enough justification for interfering with the order of acquittal passed by the High Court
The finding of the High Court in regard to the three respondents cannot be characterized as perverse or against the weight of evidence
We therefore confirm the order of acquittal passed by the High Court in their favour
In the result Criminal Appeal No 10 of 1971 is partly allowed
The acquittal of respondents 1 to 3 therein Mahendra Singh Malkhan Singh and Bachan Singh is confirmed
Respondents 4 to 6 therein Niwedan Singh Bhikam Singh and Nawab Singh are sentenced to death for the offence under section 302 read with section 149 Penal Code
The sentences imposed on them by the Trial Court for other offences shall run concurrently
Criminal Appeal No 11 of 1971 is allowed to the extent that the respondents therein Karan Singh and Arjun Singh are sentenced to imprisonment for life for the offence under section 302 read with section 149 Penal Code
The other sentences imposed on them by the Trial Court shall run concurrently with the sentence of life imprisonment
VPS Appeals partly allowed


Summary:
Eighteen persons were charged with various offences arising out of five murders
The trial court found that there was dispute between the party of the accused and the party of the deceased regarding the right to take water from a tube well that one of the accused party was appointed as Thokdar to regulate the distribution of water that on the day of the occurrence the accused party consisting of over 20 armed persons went to the field and the Thokdar ordered big companions to divert the water from the field of one of the members of the deceased party  that on an objection being raised by members of the deceased party the accused opened fire as a result of which four persons died instantaneously and a fifth was injured that the four dead bodies were then dragged to some distance the injured person was forced to walk the dead bodies were decapitated and limbs severed the injured person was hacked to death a fire was it and the five dead bodies were thrown into the fire and that the severed heads were carried away by the accused as trophies
On these findings the trial court convicted nine accused for offences under sections 302 and 201 read With section 149 I P C another accused under section 201 read with section 149 I P C and acquitted the other eight
On appeal the High Court on the basis that the Thokdar could regulate the distribution of water and was entitled to enforce his authority in such manner and by such means as he thought proper held that the common object of the assembly was to redivert the water if necessary by use of force and that the Thokdar and his followers had armed themselves with guns and other weapons only for carrying out that object and not for the purpose of committing murder and that therefore they did not form an unlawful assembly
The High Court accepted the evidence of motive and found that the actual number of persons who took part in the incident must have been considerably more than five and that all those who took part in the incident also took part in dragging the dead bodies and in the attempt to do away with the evidence of murder but convicted only one out of the nine persons convicted by the trial court for murder and convicted five others for offences under section 201 read with section 149 I P C in the appeal to this Court HELD  1 Under section 149 every member of an unlawful assembly
is liable for the offence committed by any member of the assembly in prosecution of its common object
Such vicarious liability is not limited to the acts done in prosecution of the common object of the assembly but extends even to acts which the members of the assembly knew to be likely to be committed in prosecution of that common object
On the findings of the High Court the assembly was undoubtedly an unlawful assembly as provided by section 141 fourth paragraph I P C
Under the Explanation to g 141 an assembly which was not unlawful when it assembled may subsequently become an unlawful assembly
The conclusion is also unavoidable that the members of the assembly knew that the prosecution of even the limited object of the assembly was likely to result in the murder of the members of the opposite party
If the accused were members of the unlawful assembly and had taken a leading part either in the first or the final stage of the incident they cannot escape their liability for the five murders
There wag but one unlawful assembly and its members were animated by a unity of purpose
Whether one did this or that act there was identity of interest among the members of the unlawful assembly and they were actuated by a common object
Hence the five accused who were convicted by the High Court of the offences under section 201 read with section 149 should also be convicted under g 302 I P C read with section 149
421 H 423 E 419 2As regards sentence three of them bad taken part in the decapitation and throwing the dismembered bodies into the fire
They were the more prominent members of the unlawful assembly and without their active participation the assembly could not have achieved its common object
in respect of them the sentence of death imposed by the trial Court must therefore be restored
As regards the other two there was no evidence as to how they were armed and therefore the trial Court was as justified in imposing the lesser sentence and that sentence should be confirmed
423 F 424 C 3As regards the three others convicted by the trial court and acquitted by the High Court it is possible to take a view different from that of the High Court but that would not justify the setting aside of the High Court s order of acquittal when the finding of the High Court could not be said to be perverse or against the weight of evidence
424 C E