Judgment Case ID: 806

Judgment:
ON: Criminal Appeal No. 72 of 1959. Appeal by special leave from the judgment and order dated the 2nd April	 1959	 of the Bombay High Court at Rajkot	 in Confirmation Case No. 2 of 1959 and Crl. Appeal No. 32 of 1959	 arising out of the judgment and order dated February 18	 1959	 of the Court of the Sessions Judge of Madhya Saurashtra	 at Rajkot in Sessions Case No. 18 of 1958. 174 Jai Gopal Sethi	 B. L. Kohli and K. L. Hathi	 for the appellants. H. J. Umrigar	 D. Gupta for R. H. Dhebar	 for the respondent. November 10. The Judgment of the Court was delivered by section K. DAS J. This is an appeal by special leave. The two appellants are Mepa Dana and Vashram Dana. The learned Sessions Judge of Rajkot tried them along with ten other persons for various offences under the Indian Penal Code	 including the offence of murder punishable under section 302 read with sections 149 and 34 of the Indian Penal Code. Of the twelve persons whom he tried	 the learned Sessions Judge acquitted seven. He convicted five of the accused persons. The two appellants were sentenced to death	 having been found guilty of the offence under section 302 read with section 149	 as also section 302 read with section 34	 Indian Penal Code; the other three convicted persons were sentenced to imprisonment for life. No separate sentences were passed for the minor offences alleged to have been committed by them. All the convicted persons preferred an appeal to the High Court of Bombay. There was also a reference by the Sessions Judge under section 374	 Code of Criminal Procedure	 for confirmation of the sentence of death passed on the two appellants. The appeal and the reference were heard together and by Its judgment pronounced on April 2	 1959	 the High Court affirmed the conviction of four of the convicted persons	 namely	 the two appellants and two other convicted persons who were accused nos. 1 and 11 in the trial court. The High Court allowed the appeal of accused No. 8 and set aside the conviction and sentence passed against him. It is worthy of note here that as a result of the judgment pronounced by the High Court	 the number of convicted persons came down to four only. We are emphasising this circumstance at this stage	 because one of the arguments advanced on behalf of the appellants with 175 regard to their convictions for the offence punishable under section 302 read with section 149 centres round this fact. We bad earlier stated that the number of persons whom the learned Sessions Judge tried was twelve only. However	 the prosecution case which we shall presently state in a little greater detail was that there were altogether thirteen accused persons who constituted the unlawful assembly and committed the offences in question in prosecution of the common object of the assembly or in furtherance of the common intention of all. One of them	 however	 was a juvenile and was tried by a Juvenile Court under the Sau rashtra Children Act	 1956. That is why the number of accused person	; before the learned Sessions Judge was twelve only. The case record before us does not disclose the result of the trial in the Juvenile Court	 though it has been stated on behalf of the appellants that that trial ended in an acquittal. It	 is necessary now to state what the prosecution case against the twelve accused persons was. There is a village called Nani Kundal within police station Babra in the district of Madhya Saurashtra. In that village lived one Shavshi	 who had four sons called Kurji Harji	 Mitha	 and Virji. One Dana Bharwad	 described as accused No. 1 in the trial court	 also lived in the same village. He had three sons called Amra	 Mepa and Vashram. We have already stated that Mepa and Vashram are the two appellants before us. In the beginning of the year 1958 Amra was murdered and Harji and Mitha were tried for that murder by the learned Sessions Judge of Rajkot. He	 however	 acquitted them on May 14	 1958. This caused dissatisfaction to Dana and his two sons Mepa and Vashram. On July 14	1958	 Harji Mitha	 and Virji went to a place west of the village where they had a cluster of huts. This place was north of another cluster of huts belonging to Dana. When the aforesaid three brothers were engaged in some agricultural operations	 they were	 attacked by a mob of persons led by the two appellants who were armed with axes. Harji was pounced upon and felled by blows. He managed to get up and ran towards the 176 village. Simultaneously	 Mitha and Virji also ran more or less in the same direction. The three brothers were	 however	 pursued. Kurji	 the fourth brother	 and other relatives of Shavshi ran towards the place of occurrence. Kurji was the first to arrive and the prosecution case was that Kurji was struck down by the two appellants and other members of the unlawful assembly. He died then and there. Harji was then assaulted for the second time and he also fell down and died then and there. Lastly	 Mitha was surrounded and assaulted. He also fell down and died there. The mother of the four brothers	 Kurji	 Harji	 Mitha and Virji	 as soon as she came to know of the death of three of her sons	 arrived at the place of occurrence. She then went to the shop of one Kalidas	 a leading resident of the village. There she met one Arjan who was a village chowkidar. Arjan was informed of what had happened and he went to village Barwala	 where a police out post was situated. He informed one Anantrai who was in charge of that out post. Anantrai prepared an occurence report which he sent to the officer in charge of Babra Police Station. This was the first information of the case. Babra is situate at a distance of about thirteen or fourteen miles from village Nani Kundal	 and the Sub Inspector of Police arrived at the village at about 10 45 p.m. Thereafter	 an investigation was held	 and the thirteen accused persons were sent up for trial. Substantially	 the defence of the appellants was that they had been falsely implicated out of enemity and had nothing to do with the murder of the three brothers	 Kurji	 Harji and Mitha. The case of Dana	 accused No. 1	 was that on the day in question his son Mepa was pursued and attacked by Harji	 Mitha and Kurji. Thereupon	 Dana went there to save his son Mepa and received an injury on his left band. He then ran away from the scene of occurrence. He disclaimed any knowledge of the attack on Kurji	 Harji and Mitha. The prosecution examined ten eye witnesses. Of these seven were relatives of Shavshi and three	 177 namely	 Nagji	 Bhura and Dada	 were independent persons. The learned Sessions Judge accepted substantially the evidence of the ten eyewitnesses	 but decided not to act on the testimony of the relatives of Shavshi unless there was other independent corroborative evidence or circumstance. Proceeding on that basis	 the learned Sessions Judge found that the three independent witnesses Nagji	 Bhura and Dada	 corroborated the evidence of the relatives with regard to four of the five accused persons	 namely	 the two appellants and accused nos. 1 and 11. As against accused No. 8	 the learned Sessions Judge relied upon the evidence relating to the discovery of an axe	 which was stained with human blood	 as a corroborative circumstance. In the result he convicted the two appellants and accused nos. 1	 8	 and 11. The High Court was not satisfied with the evidence against accused No. 8. As to the common object or common intention of the persons who constituted the unlawful assembly	 it said: "From the prosecution evidence	 there is no doubt whatsoever that more than five persons were operating at the scene of offence	 though the identity of all the persons has not been established except the accused nos. 1	 2	 3 and 11. There is no doubt on the prosecution evidence that more than five persons	 i.e.	 as many as ten to thirteen persons took part in this offence. Therefore	 there is no doubt that these persons had formed themselves into an unlawful assembly. From the prosecution evidence	 it is clear that the common object of these persons was to commit murders and that these persons entertained common intention to murder the victims. There is also evidence to show that all these persons carried heavy axes. Therefore	 there is no doubt that the offences under sections 147	 148	 302/149 and 302/34 of the Indian Penal Code had been committed and that the accused nos. 1	 2	3 and 11 are liable to be convicted for these offences. " We proceed now to state the arguments which have been advanced before us on behalf of the appellants. The main argument is that the conviction of the 23 178 appellants for the offence of murder	 with the aid of either section 149 or section 34	 Indian Penal Code	 is bad in law and cannot be sustained. Learned counsel for the appellants has submitted that his clients are liable to be convicted and punished for the individual acts of assault which are proved against them; but in the circumstances of this case	 they cannot be convicted of the offence of murder. This argument learned counsel had developed in two different ways. He has pointed out that the prosecution put up a definite case that thirteen named persons formed an unlawful assembly	 the common object of which was to kill the three brothers earlier named; twelve of them were tried by the learned Sessions Judge who acquitted seven and the High Court acquitted one more. This brought the number to four	 but the High Court found that there were more than five persons	 that is as many as ten to thirteen persons who took part in the offence. This finding	 so learned counsel has submitted	 amounts to this; the four convicted persons formed an unlawful assembly 	 with the necessary common object	 either with some of the acquitted persons or with certain unspecified persons	 who were never put on trial on the same indictment and about whom no indication was given by the prosecution either in the charge or in the evidence led. His contention is that in view of the finding of the High Court which resulted in the number of convicted persons falling below the required number of five	 it was not open to the High Court to make out a case of a new unlawful assembly consisting of the four convicted persons and certain unspecified persons; nor could any of the acquitted persons be held	 in spite of the acquittal	 to be members of an unlawful assembly	 for their acquittal is good for all purposes and the legal effect of the acquittal is that they were not members of any unlawful assembly. Thus	 learned counsel has contended that the conviction of the appellants for the offence of murder with the aid of section 149	 Indian Penal Code	 is bad in law. This is the first of the two ways in which he has developed his argument. 179 His second argument wider in scope and embraces both sections 149 and 34	 Indian Penal Code	 and it is this. He has pointed out that though the finding is that the two appellants assaulted Harji and Kurji with their axes	 there is no finding as to who gave the fatal blows to these brothers. Kurji had as many as four ante mortem injuries	 three on the neck and head and one on the arm. His death was due to a depressed fracture of the right temporal bone and a fissured fracture of the parietal and occipital bones. Harji had has many as thirteen ante mortem injuries including a fracture of the skull. So far as Mitha was concerned	 he had sustained a fracture of the frontal bone of the left side of his head	 a crushed fracture of the nose and socket of the left eye	 and a fracture of the maxillar bones on both sides; in other words	 Mitha 's skull was practically smashed in. The contention of the learned counsel is that in the absence of any finding that the appellants or the convicted persons alone caused the aforesaid fractures by the blows given by them	 the appellants cannot be held constructively liable	 either under section 149 or section 34	 Indian Penal Code	 for blows given by some unknown person when the prosecution made no attempt to allege or prove any such case. It is argued that even assuming that the convicted persons	 four in number	 had the necessary common intention of killing the three brothers	 none of them would be liable under section 34 Indian Penal Code	 for the acts of an unknown person or persons who might have given the fatal blows unless the prosecution alleged and proved that the criminal act was done in furtherance of the common intention of the convicted persons and those others whose identity was not known; and where thirteen named persons are said to have committed a murder in furtherance of the common intention of all	 it is not open to the prosecution to say	 on acquittal of nine of those persons	 that the remaining four committed the murder merely on the finding that they bad a common intention but without any proof whatsoever that they or any of them gave the fatal blows. 180 The two arguments overlap to some extent	 though the first is applicable specifically in respect of the charge under section 149	 Indian Penal Code	 and the second to both sections 149 and 34	 Indian Penal Code. We shall presently consider these arguments. But before we do so	 it is necessary to state that much confusion could have been avoided in this case if the two charges one under section 149 and the other under section 34were not mixed up: the difference between the two sections has been pointed out in several previous decisions of this Court	 and though we consider it unnecessary to reiterate that difference	 we must state that the difference should have been kept in mind and the two charges should not have been rolled up into one as was done in the present case. We are satisfied	 however	 that no prejudice was caused and the appellants have had a fair trial. To go back to the arguments urged on behalf of the appellants; it is necessary	 first	 to understand clearly what the finding of the final Court of fact is. We have earlier quoted that finding in the very words in which the learned Judges of the High Court expressed it. That finding stated (1) there was no doubt that more than five persons constituted the unlawful assembly	 though the identity of all the persons except those four who were convicted was not established ; (2) that the total number of persons constituting the unlawful assembly was ten to thirteen; (3) that all the ten to thirteen persons had the common object and common intention of killing Kurji	 Harji and Mitha; and lastly (4) that the killing was done in prosecution of the common object of the unlawful assembly and in furtherance of the common intention of all	 and the appellants took a major part in the assault on two of the brothers	 Kurji and Harji. The question that arises now is this: in view of these findings of the High Court	 can it be said that the High Court wrongly applied section 149	 because the number of convicted persons was only four? We think that the answer must be in the negative. We may say at once that the High Court does not find that the unlawful assembly con sisted of the four convicted persons and some of the 181 acquitted persons. That clearly is not the finding of the High Court	 because it says that " the identity of all the persons has not been established except that of accused nos. 1	 2	 3 and 11. " The finding of the High Court really means that the four convicted persons and some other persons whose identity was not established	 totalling ten to thirteen in number	 constituted the unlawful assembly. Therefore	 it is unnecessary in the present case to embark on a discussion as to the legal effect of the acquittal of nine of the accused persons	 except to state that we may proceed on the footing that the acquittal was good for all purposes and none of those nine persons can now be held to have participated in the crime so that the remaining four persons may be held guilty under section 149	 Indian Penal Code. That does not	 however	 conclude the matter. Nothing in law prevented the High Court from finding that the unlawful assembly consisted of the four convicted persons and some unidentified persons	 who together numbered more than five. We have advisedly said	 '	Nothing in law etc"; for	 whether such a finding can be given or not must depend on the facts of each case and on the evidence led. It is really a question of fact to be determined in each case on the evidence given therein. Learned counsel for the appellants has argued before us	 as though it is a matter of law	 that it was not open to the High Court to come to the finding to which it came	 because the prosecution case was that thirteen named persons constituted the unlawful assembly. We are unable to accept this argument as correct. We do not think that there was any such legal bar as is suggested by learned counsel	 though there may be cases where on the facts proved it will be impossible to reach a finding that the convicted persons	 less than five in number	 constituted an unlawful assembly with certain other unspecified persons not mentioned in the charge. That consideration apart	 any mere error	 omission or irregularity in the charge will not invalidate the finding in this case as a matter of law. So far as the finding can be said to have travelled beyond the letters of the 182 charge	 the appellants have not proved any prejudice	 and in the absence of prejudice no complaint can now De made of any defect in the charge. Learned counsel has then submitted that the finding of the High Court makes out a case of a new unlawful assembly which is different from that suggested by the prosecution case. We do not think that that view is correct either. The assembly is the same assembly	 but what has has happened is that the identity of all the members of the unlawful assembly has not been clearly established though the number has been found to be more than five. We do not think that it is unusual for witnesses to make mistakes of identity when a large number of persons are concerned in committing a crime; in any event it is a question of fact to be decided in each case and is not a question of law. Much reliance has been placed by learned counsel for the appellants on the following observations in Archbold 's Criminal Pleading	 Evidence and Practice (Thirty fourth edition	 pp. 200 201). "Where Several prisoners are included in the same indictment	 the jury may find one guilty and acquit the others	 and vice versa. But if several are indicted for a riot	 and the jury acquit all but two	 they must acquit those two also	 unless it is charged in the indictment	 and proved	 that they committed the riot together with some other person not tried upon that indictment." Similar observations occur in Hawkins 's Pleas of the Crown (2 Hawk. c. 47	 section 8) That on an indictment for a riot against three or more	 if a verdict acquit all but two	 and find them guilty; or on an indictment for a conspiracy	 if the verdict acquit all but one	 and find him guilty	 it is repugnant and void as to the two found guilty in the first case	 and as to the one found guilty in the second	 unless the indictment charge them with having made such a riot or conspiracy simul cum aliis juratoribus ignotis; for otherwise it appears that the defendants are found guilty of an offence 183 whereof it is impossible that they should be guilty; for there can be no riot where there are no more persons than two	 nor can there be a conspiracy where there is no partner. Yet it seems agreed	 that if twenty persons are indicted for a riot or ' conspiracy	 and any three found guilty of the riot	 or any two of the conspiracy	 the verdict is good. " We do not think that these observations help the appellants in the present case. They relate to the effect of a verdict of the jury at common law	 which may be either (a) general	 or (b) partial or (c) special. In a special verdict	 the facts of the case are found by the jury	 the legal inference to be derived from them being referred to the court. If	 therefore	 the jury find only one man guilty of conspiracy and two guilty of a riot	 they are really finding the defendants (to use the phraseology of Hawkins) " guilty of an offence whereof it is impossible that they should be guilty; for there can be no riot where there are no more persons than two	 nor can there be a conspiracy where there is no partner. " Obviously	 the. observations refer to those cases where the verdict of the jury does not and cannot imply that there were more than one conspirator	 or more than two persons in a riot. This is made clear by the further statement that " if twenty persons are indicted for a riot or conspiracy	 and any three found guilty of the riot	 or any two of the conspiracy	 the verdict is good." The legal position is clearly and succinctly put in Harris 's Criminal Law (Nineteenth edition	 p. 474.) " When several persons are joined in one indictment the jury may convict some and acquit others. In some cases	 however	 the acquittal of one may render the conviction of the other or others impossible; in conspiracy	 for example	 at least two of the prisoners must be convicted	 and in riot at least three	 unless those convicted are charged with having been engaged in the conspiracy or riot with some other person or persons not tried upon that indictment. " In Topan Das vs The State of Bombay (1)	 this Court proceeded on the same principle	 viz.	 that according to (1) 184 the definition of criminal conspiracy in section 120 A	Indian Penal Code	 two or more persons must be partners to such an agreement and one person alone can never be held guilty of criminal conspiracy for the simple reason that he cannot conspire with himself. That was a case in which four named individuals were charged with having committed criminal conspiracy	 but three were acquitted of the charge. The distinction between that case and the case under our consideration lies in this: in Topan Das 's case it was not possible to find	 after the acquittal of three persons out of the four charged	 that there was any partner to the conspiracy whereas in the case before us the finding is that there were ten to thirteen persons who constituted the unlawful assembly with the necessary common object but the identity of four only has been established. The point under discussion arose in the decisions of the Allahabad High Court	 viz.	 Harchanda vs Rex (1)	 and Gulab vs State (2)	 the latter over riding the earlier decision. The decision in Gulab 's case proceeded	 however	 on the footing that it was open to the appellate court to find that some of the acquitted persons had been wrongly acquitted	 although it could not interfere with such acquittal in the absence of an appeal by the State Government an aspect regarding which it is not necessary to say anything in this case. There are two other decisions	 one of the Federal Court and the other of this Court. In Kapildeo Singh vs The King (3)	 the prosecution case was that 60 or 70 men constituted the unlawful assembly	 but the appellant in that case was charged with thirteen others with having committed certain offences in furtherance of the common object of the unlawful assembly. The appellant was found guilty	 but the thirteen others who were charged along with the appellant were acquitted as they were not properly identified. One of the contentions raised in the Federal Court was that in all fourteen persons having been charged with rioting and thirteen of them having been acquitted	 (1) All. (2) All. 726. (3) 185 it could not be hold that there was any unlawful assembly of five or more pet sons whose common object was to commit an offence. With regard to this contention	 it was observed at pp. 837 838 : " The essential question in a case under section 147 is whether there was an unlawful assembly as defined in section 141	 I. P. C.	 of five or more than five persons. The identity of the persons comprising the assembly is a matter relating to the determination of the guilt of the individual accused	 and even when it is possible to convict less than five persons only	 section 147 still applies	 if upon the evidence in the case the court is able to hold that the person or persons who have been found guilty were members of an assembly of five or more persons	 known or unknown	 identified or unidentified. In the present case	 there is such a finding and that concludes the matter. " We consider that these observations apply with equal force in the present case	 and we do not think that the distinction sought to be made by learned counsel for the appellant on the basis that in Kapildeo 's case (1)	 the prosecution allegation was that there were 60 or 70 men in the unlawful assembly	 makes any difference in the legal position. The same view was expressed again by this Court in Dalip Singh vs State of Punjab (2): " Before section 149 can be called in aid	 the court must find with certainty that there were at least five persons sharing the common object. 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. This is not to say that five persons must always be convicted before section 149 can be applied. There are cases and cases. It is possible in some cases for Judges to conclude that though five were unquestionably there the identity of one or more is in doubt. In that case	 a conviction of the rest with the aid of section 149 would be good. But if (1) 24 (2) ; 	150. 186 that is the conclusion it behoves a court	 particularly in a murder case where sentences of transportation in no less than four cases have been enhanced to death	 to say so with unerring certainty. " The same view was reiterated in Nar Singh vs State of Uttar Pradesh (1). We have stated earlier what the finding in the present case is: it is a clear finding a finding with certainty that the number of persons who constituted the unlawful assembly was more than five	 though the identity of four only has been established; and the killing was done in prosecution of the common object of the entire unlawful assembly Therefore	 we see no serious difficulty in applying section 149	 Indian Penal Code	 in the present case. As to the application of section 34 Indian Penal Code	 we consider that the legal position does not admit of any doubt or difficulty. Four persons have been convicted of murder on the finding that all of them and some others had the common intention of killing three brothers; the appellants took part in the assault in furtherance of the common intention	 and it is riot disputed that the common intention was achieved by murdering the three brothers	 Kurji	 Barji and Mitha. The number of convicted persons is more than one	 and it does not fall below the required number. What then is the difficulty in applying section 34	 Indian Penal Code? Learned counsel says: "We do not know who gave the fatal blows ". We accept the position that we do not know which particular person or persons gave the fatal blows; but once it is found that a criminal act was donein furtherance of the common intention of all	 each of such persons is liable for the criminal act as if it were done by him alone. The section is intended to meet a case in which it may be difficult to distinguish between the acts of individual members of a party who act in furtherance of the common intention of all or to prove exactly what part was taken by each of them. The principle which the section embodies is participation in some action with the common intention of committing a crime ; once such participation is established	 section 34 is at once (1) A I.R 	459. 187 attracted. In the circumstances	 we fail to see what difficulty there is in applying section 34	 Indian Penal Code	 in the present case. In the course of his arguments learned counsel has suggested that some of the acquitted persons might have given the fatal blows and as they have been acquitted	 the appellants cannot be constructively liable for their acts. We do not think that this a correct way of looking at the matter. We are proceeding in this case on the basis that the acquittal is good for all purposes	 and we cannot bring in the acquitted persons for an argument that they or any of them gave the fatal blows. It is necessary to refer now to two decisions of this Court with regard to the application of section 34	 Indian Penal Code. Learned counsel for the respondent has relied on Wasim Khan vs The State of Uttar Pradesh (1). In that case the High Court found that the appellant along with two others committed the offences of robbery and murder; but the two co accused were acquitted. It was observed that on the finding of the High Court the appellant could be convicted by the application of section 34	 even though the two co accused of the appellant were acquitted. That was a case in which the number came down to one by the acquittal of the two co accused. The present case is a much stronger case in the matter of the application of section 34	 because the number of convicted persons who participated in the criminal act in furtherance of common intention of all is four. In Prabhu Babaji Navle vs The State of Bombay(2) the appellant along with four others was charged under section 302 read with section 34	 Indian Penal Code; four others were acquitted. The question was if the appellant could be convicted under section 34 after the acquittal of four others. Here again the number fell to one	 that is	 below the required number. It was observed: If these four persons are all acquitted	 the element of sharing a common intention with them disappears; and unless it can be proved that he shared a common intention with actual murderer or (1) [1956] S.C.R. 191. (2) A.I.R. 1956 S.C. 51. 188 murderers	 he cannot be convicted with the aid of section 34. of course he could have been charged in the alternative for having shared a common intention with another or others unknown. But even then	 the common intention would have to be proved either by direct evidence or by legitimate inference. It is impossible to reach such a conclusion on the evidence in this case once the co accused are eliminated because the whole gravamen of the charge and of the evidence is that the appellant shared the common intention with those other four and not with others who are unknown." This decision can be distinguished on two grounds: (1) the number fell below the required number and (2) it was not possible to reach a conclusion in that case that the appellant shared the common intention with another or others unknown. In our case the number of convicted persons is four and each of them had the necessary common intention ; secondly	 there is a clear finding that they shared the common intention with some others whose identity was not established. The decision in Prabhu Babaji Navle (1) does not	 therefore	 stand in our way. Lastly	 there is the question of sentence. Learned counsel for the appellants has submitted that the lesser sentence should be imposed	 and he has given three reasons in support of his submission: (1) that Amra	 brother of the appellants	 was murdered earlier in the year; (2) that the father of the appellants was also convicted but was not given capital punishment	 though he must have influenced the appellants; and (3) there is no finding that the appellants caused the fatal injuries. We have examined the evidence and it shows clearly enough that the appellants played a leading part and	 so far as Kurji and Harji were concerned	 took a major part in assaulting them with heavy axes. The High Court also carefully considered the sentence imposed on the appellants and came to the conclusion that having regard to the enormity of the crime	 viz.	 three premeditated and cold blooded (1) A.I.R. 1956 S.C. 51 189 murders and the part played by the appellants	 it would not be justified in imposing the lesser sentence. We see no good reasons for differing from the High Court and interfering with the sentence. For the reasons given above	 the appeal fails and is dismissed. Appeal dismissed.

Summary:
Twelve named persons	 including the two appellants	 were charged with having formed an unlawful assembly with the common object of committing the murder of three persons. The Sessions Judge acquitted seven of the accused but convicted five under section 302 read with 149 and section 302 read with 34 of the Penal Code. He sentenced the appellants to death and the other three to imprisonment for life. On appeal	 the High Court acquitted one of the other three convicted persons but maintained the conviction and sentences of the appellants and the two others. The High Court held that there were ten to thirteen persons in the unlawful assembly though the identity of all the persons except four had not been established	 that all these persons had the common object and the common intention of killing the victims and that the killing was done in prosecution of the common object of the unlawful assembly and in further ance of the common intention of all. The appellants contended that they having been charged with sharing the common object and common intention with certain named persons	 it was not 173 open to the High Court to hold that they shared the common object or the common intention with certain other unspecified persons or with some of the persons who had been acquitted	 and that in the absence of any finding that the appellants gave the fatal blows they could not be held constructively liable for the murders either under section 149 or section 34	 Penal:Code	 for blows given by some unknown persons. Held	 that the appellants had been rightly convicted. Even though the number of convicted persons was less than five the High Court could still apply s 149 in convicting the four persons. There was nothing in law which prevented the High Court from finding that the unlawful assembly consisted of the four convicted persons and some unidentified persons	 who together numbered more than five. In doing so the High Court did Dot make out a new unlawful assembly different from that charged ; the assembly was the same assembly but what had happened was that the identity of all the members had not been clearly established. Kapildeo Singh vs The King	 	 Dalip Singh vs State of Punjab	 ; and Nay Singh vs State of Uttar Pradesh; 	 	 applied. There was no difficulty in the application of s 34	 Penal Code as the number of convicted persons was four and there was a clear finding that they shared the common intention with some others whose identity was not established. Even if it was not known which particular person or persons gave the fatal blows	 once it was found that the murders were committed in furtherance of the common intention of all	 each one of such persons was liable for the murders as though they had been committed by him alone. The section was intended to meet a case where members of a party acted in furtherance of the common intention of all but it was difficult to prove exactly the part played by each of them. Wasim Khan vs The State of Uttar Pradesh	 [1956] S.C.R. 191	 referred to. Prabhu Babaji Navle vs The State of Bombay	 A.I.R. 1956 S.C. 51	 distinguished.