N Criminal Appeal No 242 of 1971
Appeal by Special Leave from the Judgment and Order dated 21 4 1971 of the Rajasthan High Court at Jodhpur in D B Criminal Appeal No 343 of 1969
Harbans Singh for the Appellant
section M Jain for Respondent
The Judgment of the Court was delivered by SHINGHAL J
This appeal of Maina Singh arises out of the judgment of the Rajasthan High Court dated April 21 1971 upholding the trial court s judgment convicting him of an offence under section 302 read with section 34 IPC for causing the death of Amar Singh and of an offence under section 326 IPC for causing grievous injuries to Amar Singh s son Ajeet Singh PW 2 and sentencing him to imprisonment for life for the offence of murder and to rigorous imprisonment for three years and a fine of Rs 100 for the other offence
The deceased Amar Singh and accused Maina Singh and his three sons Hardeep Singh Jeet Singh and Puran Singh used to live in chak  No 77 GB in Ganganagar district of Rajasthan while Narain Singh used to live in another chak 
It was alleged that the relations between Amar Singh and Maina Singh were strained as Maina Singh suspected that Amar Singh was giving information about his smuggling activities
Amar Singh was having some construction work done in his house and had engaged Isar Ram PW 3 as a mason
On June 29 1967 at about sun set the deceased Amar Singh his son Ajeet Singh PW 2 and Isar Ram PW 3 went to the diggi  in murabba  35 for bath
Ajeet Singh took his bath and was changing his clothes and Isar Ram was nearby
Amar Singh was cleaning his lota  after attending the call of nature
It is alleged that at that time Maina Singh and his three sons Hardeep Singh Jeet Singh and Puran Singh came to the diggi  along with Narain Singh
Maina Singh was armed with a 12 bore gun Puran Singh with a takua  and the other three with gandasis 
Maina Singh fired at Amar Singh but could not hit him
The gun shots however hit Ajeet Singh PW 2 on his legs and he jumped into a dry water course which was nearby to take cover
Maina Singh fired again but without success
Amar Singh ran towards the sugarcane field crying for help but was chased by the accused
Ajeet Singh thereupon ran towards chak  No 78 GB and ultimately went and lodged a report at Police Station Anoopgarh at 10 pm after covering a distance of about six miles
The five accused however followed Amar Singh
Maina Singh fired his gun at Amar Singh and he fell down
The other accused went near him and gave gandasi  blows and Maina Singh gave a blow or two with the butt end of his gun which broke and the broken pieces fell down
Amar Singh succumbed to his injuries on the spot and the accused ran away
On the report of Ajeet Singh about the incident which took place by the time he left for the police station the police registered a case 653 for an offence under section 307 read with section 149 IPC and started investigation
The body of Amar Singh was sent for post mortem examination
The report exhibit P 9 of Dr Shanker Lal PW 5 is on the record
The injuries of Ajeet Singh PW 2 were also examined by Dr Shanker Lal and his report in that connection is exhibit P10
It was found that there were several gun shot injuries incised wounds and lacerated wounds on the body of the deceased and there were as many as 12 gun shot wounds on the person of Ajeet Singh PW 2
All the five accused were found absconding and could be taken into custody after proceedings were started against them under sections 87 and 88 Cr P C Maina Singh held a licence for gun exhibit 23 and led to its recovery during the course of the investigation vide memorandum exhibit P 43
At that time its butt was found to be missing
Its broken pieces had however been recovered by the investigating officer earlier along with the empty cartridges
The prosecution examined Ajeet Singh PW 2 Isar Ram PW 3 and Smt
Jangir Kaur PW 7 the wife of the deceased as eye witnesses of the incident
The accused denied the allegation of the prosecution altogether but Maina Singh admitted that the gun belonged to him and he held a licence for it
The Sessions Judge disbelieved the evidence of Smt
Jangir Kaur PW 7 mainly for the reason that her name had not been mentioned in the first information report
He took the view that the statements of Ajeet Singh PW 2 and Isar Ram PW 3 were inconsistent regarding the part played by Hardeep Singh Jeet Singh Narain Singh and Puran Singh accused and although he held that one or more of the accused persons besides Maina Singh might be responsible for causing injuries to the deceased along with Maina Singh he held further that it could not be ascertained which one of the accused was with him
He also took the view that some one else might have been with him and he therefore gave the benefit of doubt to accused Hardeep Singh Jeet Singh Puran Singh and Narain Singh and acquitted them
As the statements of Ajeet Singh PW 2 and Isar Ram PW 3 were found to be consistent against appellant Maina Singh and as there was circumstantial evidence in the shape of the recovery of empty cartridges near the dead body and gun exhibit 23
as well as the medical evidence and the fact that the accused had absconded the learned Sessions Judge convicted and sentenced him as aforesaid
An appeal was preferred by the State against the acquittal of the remaining four accused and Maina Singh also filed an appeal against his conviction
The High Court dismissed both the appeals and maintained the conviction and sentence of Maina Singh as aforesaid
Mr Harbans Singh appearing on behalf of appellant Maina Singh has not been able to challenge the evidence on which appellant Maina Singh has been convicted but he has raised the substantial argument that he could not have been convicted of the offence of murder under section 302 read with section 34 IPC when the four co accused had been acquitted and the Sessions Judge had found that it was not possible to record a conviction under section 302 read with section 149 IPC or section 148 IPC
It has been argued that when the other four accused were given 654 the benefit of doubt and were acquitted it could not be held in law that they formed an unlawful assembly or that any offence was committed by appellant Maina Singh in prosecution of the common object of that assembly
It has been argued further that a fortiori it was not permissible for the Court of Sessions or the High Court to take the view that a criminal act was done by appellant Maina Singh in furtherance of the common intention of the other accused when those accused had been named to be no other than Hardeep Singh Puran Singh Jeet Singh and Narain Singh who had all been acquitted
It has therefore been argued that all that was permissible for the High Court was to convict appellant Maina Singh of any offence which he might have committed in his individual capacity without reference to the participation of any other person in the crime
On the other hand it has been argued by Mr section M Jain that as the learned Sessions Judge had acquitted the remaining four accused by giving them the benefit of doubt and had recorded the finding that one or more of the accused persons or some other person might have participated in the crime along with Maina Singh the High Court was quite justified in upholding the conviction of the appellant Maina Singh of an offence under section 30234 IPC
The relevant portion of the judgment of the trial court which bears on the controversy and has been extracted with approval in the impugned judgment of the High Court is as follows The injuries found on the person of the deceased Amar Singh were with fire arm blunt as well as sharp weapon
fire arm injuries and the blunt weapon injuries have been assigned to Maina Singh and so there must have been other person also along with Maina Singh in causing injuries to the deceased
It can be so inferred from the statements of Isar Ram and Ajeet Singh also
These facts could no doubt create a strong suspicion that one or more of the accused persons might be responsible along with Maina Singh in causing injuries to the deceased
In view of the statement of Isar Ram and Ajeet Singh it cannot however be ascertained which one of the accused was with Maina Singh and it was also possible that some one else might have been with him
In such a case the prosecution version against these four accused persons are not proved beyond doubt
They are therefore not guilty of the offence with which they have been charged
 It would thus appear that the view which has found favour with the High Court is that as there were injuries with fire arm and with blunt and sharp edged weapons and as the fire arm and the blunt weapon injuries had been ascribed to Maina Singh there must have been one other person with him in causing the injuries to the deceased
At the same time it has been held further that these facts could only create a strong suspicion that one or more of the accused persons might be responsible along with Maina Singh in causing the injuries to the deceased but it could not be ascertained which one of the accused was with him and that it was also possible that some one else might have been with him
 The finding therefore is that the other person 655 might have been one of the other accused or some one else and not that the other associate in the crime was a person other than the accused
Thus the finding is not categorical and does not exclude the possibility of infliction of the injuries in furtherance of the common intention of one of the acquitted accused and the appellant
Another significant fact which bears on the argument of Mr Harbans Singh is that while in the original charge sheet the Sessions Judge specifically named appellant Maina Singh and the other accused Hardeep Singh Puran Singh Jeet Singh and Narain Singh as forming an unlawful assembly and for causing the death of Amar Singh in furtherance of the common object of that assembly he altered that charge but retained at the same time the charge that Maina Singh formed an unlawful assembly along with the other accused with the common object of murdering Amar Singh and intentionally caused injuries to him along with the other accused in prosecution of that common object
In this case therefore Maina Singh and the other four accused were alleged all along to have participated in the crime and were named in the charge sheet as the perpetrators of the crime without there being an allegation that some other person besides the accused took part in it in any manner whatsoever
It was in fact the case from the very beginning including the first information report that the offence was committed by all the five named accused and even the evidence of the prosecution was confined to them all through and to no other person
The question is whether the High Court was right in upholding the conviction of the appellant with reference to section 34 IPC in these circumstances  Such a question came up for consideration in this Court on earlier occasions and we shall refer to some of those decisions in order to appreciate the argument of Mr Jain that the decision in Dharam Pal vs The State of UP expresses the latest view of this Court and would justify the appellant s conviction by invoking section 34 IPC
We may start by making a reference to The King vs Plummer which as we shall show has been cited with approval by this Court in some of its decisions
That was a case where there was a trial of an indictment charging three persons jointly with conspiring together
One of them pleaded guilty and a judgment was passed against him and the other two were acquitted
It was alleged that the judgment passed against the one who pleaded guilty was bad and could not stand
Lord Justice Wright held that there was much authority to the effect that if there was acquittal of the only alleged co conspirators no judgment could have been passed on the appellant if he had not pleaded guilty because the verdict must have been regarded as repugnant in finding that there was a criminal agreement between the appellant and the others and none between them and him
In taking that view he made a reference to Harrison vs Errison where upon an indictment of three for riot two were found not guilty and one guilty and upon error brought it was held a void verdict
Bruce J who was the other judge in the case made a reference to the following 656 statement in Chitty s Criminal Law while agreeing with the view taken by Wright J And it is holden that if all the defendants mentioned in the indictment except one are acquitted and it is not stated as a conspiracy with certain persons unknown the conviction of the single defendant will be invalid and no judgment can be passed upon him
 This Court approved Plummer s case supra in its decision in Topandas vs The State of Bombay
That was a case where four named individuals were charged with having committed an offence under section 120 B IPC and three out of those four were acquitted
This Court held that the remaining accused could not be convicted of the offence as his alleged co participators had been acquitted for that would be clearly illegal
A similar point came up for consideration in Mohan Singh vs State of Punjab
There two of the five persons who were tried together were acquitted while two were convicted under section 302 read with section 149 and section 147 IPC
In the charge those five accused persons and none others were mentioned as forming the unlawful assembly and the evidence led in the case was confined to them
The proved facts showed that the two appellants and the other convicted person who inflicted the fatal blow were actuated by common intention of fatally assaulting the deceased
While examining the question of their liability it was observed as follows Cases may also arise where in the charge the prosecution names five or more persons and alleges that they constituted an unlawful assembly
In such cases if both the charge and the evidence are confined to the persons named in the charge and out of the persons so named two or more are acquitted leaving before the court less than five persons to be tried then section 149 cannot be invoked
Even in such cases it is possible that though the charge names five or more persons as composing an unlawful assembly evidence may nevertheless show that the unlawful assembly consisted of some other persons as well who were not identified and so not named
In such cases either the trial court or even the High Court in appeal may be able to come to the conclusion that the acquittal of some of the persons named in the charge and tried will not necessarily displace the charge under section 149 because along with the two or three persons convicted were others who composed the unlawful assembly but who have not been identified and so have not been named
In such cases the acquittal of one or more persons named in the charge does not affect the validity of the charge under section 149 because on the evidence the court of facts is liable to reach the conclusion that the persons composing the unlawful assembly nevertheless were five or more than five
 657 In taking this view this Court took note of its earlier decisions in Dalip Singh vs State of Punjab Bharwad Mena Dana vs State of Bombay and Kartar Singh vs State of Punjab
The other case to which we may make a reference is Krishna Govind Patil vs State of Maharashtra
It noticed and upheld the earlier decision in Mohan Singh s case supra and after referring to the portion which we have extracted it was held as follows It may be that the charge discloses only named persons it may also be that the prosecution witnesses named only the said accused but there may be other evidence such as that given by the court witnesses defence witnesses or circumstantial pieces of evidence which may disclose the existence of named or unnamed persons other than those charged or deposed to by the prosecution witnesses and the court on the basis of the said evidence may come to the conclusion that others named or unnamed acted conjointly along with one of the accused charged
But such a conclusion is really based on evidence
 It would thus appear that even if in a given case the charge discloses only the named persons as co accused and the prosecution witnesses confine their testimony to them even then it would be permissible to come to the conclusion that others named or unnamed besides those mentioned in the charge or the evidence of the prosecution witnesses acted conjointly with one of the charged accused if there was other evidence to lead to that conclusion but not otherwise
The decision in Krishna Govind Patil s case supra was followed by the decision in Ram Bilas Singh vs State of Bihar
After noticing and approving the view taken in Plummer s case supra and the decisions in Mohan Singh s case supra and Krishna Govind Patil s case supra this Court stated the law once again as follows The decisions of this Court quoted above thus make it clear that where the prosecution case as set out in the charge and as supported by the evidence is to the effect that the alleged unlawful assembly consists of five or more named persons and no others and there is no question of any participation by other persons not identified or identifiable it is not open to the court to hold that there was an unlawful assembly unless it comes to the definite conclusion that five or more of the named persons were members thereof
Where however the case of the prosecution and the evidence adduced indicates that a number in excess of five persons participated in the incident and some of them could not be identified it would be open to the court to convict less than five of the offence of being members of the unlawful assembly or convict them of the offence committed by the unlawful assembly with the aid of section 149 IPC provided it comes to 658 the conclusion that five or more persons participated in the incident
 The other decision to which our attention has been invited is Yeswant vs State of Maharashtra
The decision in Krishna Govind Patil supra was cited there on behalf of the appellant and while referring to the view expressed there it was observed that in the case before the court there was evidence that the man who used the axe on Sukal was a man who looked like appellant Brahmanand Tiwari and could be that accused himself
But as the Court was not satisfied that the identify of the person who used the axe on Sukal was satisfactorily established as that of Brahmanand Tiwari it took the view that the remaining accused could be convicted with the aid of section 34 for the offences committed by them
This Court did not therefore disagree with the view taken in Krishna Govind Patil s case supra but purported to follow it in its decision and took the aforesaid view in regard to the identity of Brahmanand Tiwari for the purpose of distinguishing it from the case of Krishna Govind Patil supra where there was not a single observation in the judgment to indicate that persons other than the named accused participated in the offence and there was no evidence also in that regard
The matter once again came up for consideration in Sukh Ram vs State of UP
The Court referred to its earlier decisions including those in Mohan Singh s case supra and Krishna Govind Patil s case supra and while distinguishing them on facts it observed that as the prosecution did not put forward a case of the commission of crime by one known person and one or two unknown persons as in Sukh Ram s case supra and there was no evidence to the effect that the named accused had committed the crime with one or more other persons the acquittal of the other two accused raised no bar to the conviction of the appellant under section 302 read with section 34 I P C
The decision in Sukh Ram s case supra cannot therefore be said to lay down a contrary view for it has upheld the view taken in the earlier decisions of this Court
That leaves the case of Dharam Pal vs State of UP supra for consideration
In that case four accused were tried with fourteen others for rioting
The trial court gave benefit of doubt to eleven of them and acquitted them
The remaining seven were convicted for the offence under section 302149 IPC and other offences
The High Court gave benefit of doubt to four of them and held that at least four of the accused participated in the crime because of their admission and the injuries
On appeal this Court found that the attacking party could not conceivably have been of less than five because that was the number of the other party and it was in that connection that it held that there was no doubt about the number of the participants being not less than five
It was also held that as eighteen accused participated in the crime and the Court gave the benefit of doubt to be on the side of safety as a matter of abundant caution reducing the number to less than five it may not be difficult to reach the conclusion having regard to undeniable facts that the number of the 659 participants could not be less than five
That was therefore a case which was decided on its own facts but even so it was observed as follows It may be that a definite conclusion that the number of participants was at least five may be very difficult to reach where the allegation of participation is confined to five known persons and there is no doubt about the identity of even one
 It cannot therefore be said that the decision in Dharam Pal s case supra is any different from the earlier decisions of this Court or that it goes to support the view which has been taken by the High Court in the case before us
The view which has prevailed with this Court all along will therefore apply to the case before us
As has been stated the charge in the present case related to the commission of the offence of unlawful assembly by the appellant along with the other named four co accused and with no other person
The trial in fact went on that basis throughout
There was also no direct or circumstantial evidence to show that the offence was committed by the appellant along with any other unnamed person
So when the other four co accused have been given the benefit of doubt and have been acquitted it would not be permissible to take the view that there must have been some other person along with the appellant Maina Singh in causing the injuries to the deceased
It was as such not permissible to invoke section 149 or section 34 I P C Maina Singh would accordingly be responsible for the offence if any which could be shown to have been committed by him without regard to the participation of others
The High Court has held that there could be no room for doubt that the fire arm and the blunt weapon injuries which were found on the person of Amar Singh were caused by appellant Maina Singh and that finding has not been challenged before us by Mr Harbans Singh
Dr Shanker Lal P W 5 who performed the post mortem examination stated that while all those injuries were collectively sufficient in the ordinary course of nature to cause death he could not say whether any of them was individually sufficient to cause death in the ordinary course of nature
It is not therefore possible to hold that the death of Amar Singh was caused by the gun shot or the blunt weapon injuries which were inflicted by appellant Maina Singh
Dr Shanker Lal has stated that the fracture of the frontal bone of the deceased could have been caused by external injuries Nos 8 10 and 12 and that he could die of that injury also but of those three injuries injury No 12 was inflicted by a sharp edged weapon and could not possibly be imputed to the appellant
The evidence on record therefore does not go to show that he was responsible for any such injury as could have resulted in Amar Singh s death
The evidence however proves that he inflicted gun shot injuries on the deceased and Dr Shankar Lal has stated that one of those injuries injury No 26 was grievous
Maina Singh was therefore guilty of voluntarily causing grievous hurt to the deceased by means of an instrument for shooting and was guilty of an offence under section 326 I P C
In the circumstances of the case we think it proper to sentence him to rigorous 660 imprisonment for 10 years for that offence
As has been stated he has been held guilty of a similar offence for the injuries inflicted on Ajeet Singh P W 2 and his conviction and sentence for that other offence under section 326 I P C has not been challenged before us
The appeal is therefore allowed to the extent that the conviction of Maina Singh under section 30234 I P C is altered to one under section 326 I P C and the sentence is reduced to rigorous imprisonment for ten years thereunder
The conviction under section 326 for causing injuries to Ajeet Singh and the sentence of rigorous imprisonment for three years and a fine of Rs 100 call for no interference and are confirmed
Both the sentences will run concurrently
PBR Appeal allowed


Summary:
The appellant and four others were charged with offences under sections 302149 IPC the appellant with having shot at the deceased and the other accused with giving blows to the deceased with a sharp edged weapon
The trial court acquitted the four accused but convicted the appellant under section 302 read with section 34 IPC The High Court dismissed the appeal of the State against acquittal as also the appellant s appeal against conviction
In appeal to this Court it was contended for the appellant that it was not permissible to take the view that a criminal act was done by the appellant in furtherance of the common intention of the other accused when those accused who had been named had all been acquitted and that all that was permissible for the High Court was to convict the appellant of an offence which he might have committed in his individual capacity
Allowing the appeal in part  HELD It was not permissible for the High Court to invoke section 149 or section 34 IPC 659D E 1 In a given case even if the charge disclosed only the named persons as co accused and the prosecution witnesses confined their testimony to them it would be permissible to conclude that others named or unnamed acted conjointly with one of the charged accused if there was other evidence to lead to that conclusion but not otherwise
657D The charge in the present case related to the commission of the offence of unlawful assembly by the appellant along with four named co accused and with no other person
The trial in fact went on that basis throughout
There was also no direct or circumstantial evidence to show that the offence was committed by the appellant along with any other unnamed person
So when the other four co accused had been given the benefit of doubt and acquitted it would not be permissible to take the view that there must have been some other person along with the appellant in causing injuries to the deceased
The appellant would accordingly be responsible for the offence if any which could be shown to have been committed by him without regard to the participation of others
659C E Dharam Pal vs The State of UP  explained and followed
The King vs Plummer  Topandas vs The State of Bombay  Mohan Singh vs State of Punjab 1962 Supp
3 SCR 848 Krishna Govind Patil vs State of Maharashtra   Ram Bilas Singh vs State of Bihar and Yeswant vs State of Maharashtra  referred to
2 The appellant was guilty of voluntarily causing grievous hurt to the deceased by means of an instrument for shooting and was therefore guilty of an offence under section 326 IPC From the medical evidence it is not possible to say that the death of the deceased was caused by gun shot or by blunt weapon injuries
It however proved that the appellant inflicted gun shot in juries on the deceased one of the injuries being grievous
659H 652