Subba Rao, C.J.
1. The three appellants were accused 1 to 3 before the Court of session, West Godavari. They were charged along with five other accused under different sections of the Indian Penal Code. Accused 4 to 8 were acquitted but accused 1 to 3 were convicted under Section 302 I. P. C. and sentenced to transportation for life. They were acauitted on other charges.
2. The prosecution case may be briefly narrated. In the village of Gimdugolanu, due to Panrhayat elections, there were two factions in the village, one of the Velemas and the other of the Kapus. Accused 4 and one Bhogaraju Perraju stood for election to the office of Panchayat Board President. The accused supported the candidature of accused 4 whereas the Kapus backed Perraju. The bad blood created by the election ended in the murder of two persons Chandrayya and Gangayya.
In that connection, the deceased Tirupati, P. W. 1, P. W. 3, Paidayya and Sanyasi, brothers of P. W. 1 were charged for murder. The Sessions Judge convicted Paidayya and Sanyasi and sentenced them to transportation for life and he also sentenced Thirupati and P. Ws. 1 and 3 to undergo rigorous imprisonment for one year. The accused therein preferred an appeal to the High Court. Pending the appeal, Thirupati and P. Ws. 1 and 3 were let on bail.
Accused 4, 5, 6 and 8 were prosecution witnesses in that case. Accused 1 was also a prosecution Witness, though he was given up during the trial. Alter Thirupati was let on bail, he came to stay in his ancestral house but had to leave it as accused 2 and his brother threatened him. They also prevented P. W. 1 from repairing the compound wall There were other disputes between them in connection with the lease of land belonging to the Board High School.
In connection with that lease, on the night of 18-6-1954 Thirupati and P. W. 1 went to the house Of P. W. 15 to request him to stand as surety for the lease amount After getting his consent, at about 9 P.M. when coming home, Thirupati went inside the compound of the cinema to purchase a cigar While P. W. 1 was going towards house. After Thirupathi purchased a cigar and was smoking, accused 1 and 3 armed with sticks entered the cinema compound and beat him. When he was in a prostrated condition, accused 2 dragged him out of the cinema compound and left him in the side drain.
A little time later, accused 1 to 4 again returned with sticks and gave him another beating till he died. Accused 1 and 4 attacked P. W. 1 in front of accused 4's house and beat him. When P.W. 2 came out of his house into the main road, he was attacked by accused 3 and 5 to 8 on the main road near the Bose's statue and was beaten. On those facts, accused 1 to 8 were charged under Section 148 I.P.C. on the ground that they were members of an unlawful assembly and, in prosecution of the common object to beat Thirupathi to death, committed the offence of rioting.
Accused 1 to 4 were in addition charged under Section 302 for having committed the murder of Thirupathi in the course of the same transaction. Accused 5 to 8 were also charged under Section 149 read with Section 302 I.P.C. for being members of an unlawful assembly with the common object of killing Thirupathi. All the accused were charged under different counts for causing grievous hurt to P. W. 1 and P. W. 2 in prosecution of the aforesaid common object.
3. The learned Sessions Judge held, on the evidence, that the prosecution had failed to prove by satisfactory evidence that the accused formed themselves into an unlawful assembly and had the common object of beating the deceased and the other injured persons. In that view, he discharged all the accused under the charges other than charges Nos. 1, 2, 4 to 7. He also held that the prosecution failed to establish that accused 1 and & beat P. W. 1.
So too, in regard to the incident relating to P. W. 2, he was inclined to believe that P. W. 2 was beaten by some unknown persons. He expressed the view that the presence of accused 4 was doubtful and, therefore, he gave the benefit of doubt to him. But he accepted the evidence of P. Ws. 4 to 10 and found that accused 1 to 3 gave the beatings to the deceased in the manner described by them, which resulted in his death. On those findings, he acquitted all the accused on all the charges other than charge No. 2. Under that charge, he convicted accused 1 to 3 under Section 302 and sentenced them to transportation for life.
4. The learned Counsel for the appellants, Mr. R.V. Rama Rao vehemently argued that the three separate incidents were parts of an integrated design and that, as the Prosecution failed to establish the part taken by accused 4 in the two incidents or even in the first incident, the learned Judge should have rejected the entire version of the Prosecution. He further contended that the Judge, having rejected the evidence of the prosecution witnesses in respect of the part attributed by them to accused 4, should not have relied upon that perjured evidence to convict the appellants.
At the outset, we should like to make it clear that the appreciation of oral evidence by a Court cannot conform to certain set formulae or the measured by the yard stick common to all cases. Though certain observations are found in the various decided cases to the effect that ordinarily a Court should not convict an accused on the basis of evidence not accepted by it in connection with the other accused, unless the evidence is corroborated otherwise, the observations were not intended to lay down an inflexible rule of law but were directed to suggest a rule of prudence for the appreciation of evidence. They were not and could not have been intended to prevent a Judge of fact from appreciating the evidence that was placed before him, having regard to the circumstances of each case.
5. Before adverting to the evidence, it may be convenient to know the topography of the place where the offence was committed. The main road runs from east to west. The touring cinema was situated on the northern side of the road. There were two gates leading into the cinema compound, one for the males and the other for females.
Inside the compound, there are a tea shop and a soda shop. A few yards towards west on the northern side of the road, there are the houses of accused 3 and 4. A few yards further west, there is Bose's statue. The corpse was admittedly found to the drain between the road and the cinema near the entrance. There are also shops where soda and cigars are sold on the other side of the road.
His Lordship discussed the evidence and on a consideration held that accused 1 to 3 beat the deceased. His Lordship proceeded:
6-25. The learned Counsel then contends that the accused were only charged under Section 302 I. P. C. for the substantive offences of murder committed by each one of them and that as the different wounds on the dead body were not allocated to each of the accused, all of them were entitled to be acquitted on the charge of murder. This raises the question whether the accused who were charged for the substantive offence of murder could be convicted under Section 302 read with Section 34, I.P.C. if the evidence sustained the conviction.
26. Before we consider the case law on the subject, it would be convenient at this stage to notice the scope of the charges against the appellants. The two relevant charges against accused 1 to 3 read:
Firstly: That you accused 1 to 8 on the 18th day of June 1954 at or about 9 P.M. near the touring cinema theatre in Gundugolanu were members of an unlawful assembly and did. in prosecution of the common object of the said, assembly viz., to beat Gandi Tirupathi and the members of his party to death commit the offence of rioting with deadly weapons which used as weapons of offence were likely to cause death, to wit spear and sticks and thereby committed an offence punishable under B. 148, Penal Code and within my cognizance.
Secondly: That you accused 1 to 4 on the same day at or about the same time and place and in the course of the same transaction did commit murder by intentionally or knowingly causing the death of the abovesaid Gandi Thirupati of Gundugolanu by beating him with sticks and thereby committed an offence punishable under Section 302, Penal Code and within my cognizance.
It is true that, in the charges, no mention is made of Section 34, Penal Code. But a combined reading of the first two charges clearly indicates that the accused were put on notice of the fact that they committed an offence under Section 148 in prosecution of the common object of the said assembly viz., to beat Gandi Thirupathi to death and that, in the course of the same transaction, they also committed murder under Section 302 I.P.C.
Though under Section 148, Penal Code, they were acquitted, the accused could not possibly contend that they were not put on notice of the fact that their common object was to kill Gandi Tirupathi, It is no doubt settled law that the ingredients of 8. 34 and that of Section 149 differ in some material particulars, though they also overlap under certain circumstances. Both relate to vicarious or collective liability. Section 34 does not create an offence and the provisions thereof merely lay down a rule of law, while Section 149 creates a definite head of criminality.
While the common intention is the decisive test under Section 34, the common object of the members is the basis of Section 149. While membership of an. unlawful assembly is the foundation of the liability under Section 149, participation in the criminal act is the gist of the offence under Section 34. In some cases, the object of the accused may be lawful, while they have a common intention to commit an offence for achieving that object. The facts constituting the common intention and those of common object may in other cases overlap.
Accused may have had a pre-arranged plan to commit a murder & they may constitute an unlawful assembly with the same object. Where there is overlapping of the facts bringing a case both under Section 34 and under Section 149, if an accused is charged for an offence involving a common object to commit murder, he cannot possibly be prejudiced by the omission of Section 34 in the charge. Further even In a case where the accused are cnarged sirapliciter only for committing murder, there is nothing in law which prohibits a Court from convicting them under Section 302 read with Section 34 if the evidence justified it and if the accused are not prejudiced by the absence of an express charge under Section 34, for Section 34, as we have already stated, does not create any separate offence but only lays down a rule of law.
This principle is embodied in Section 225, Criminal P.C. which expressly states that no error in stating either the offence or those particulars required to be stated in the charge and no omission to state the offence or those particulars shall be regarded at any stage of the case as material unless the accused was in fact misled by such error or omission and it has occasioned a failure of justice.
27. In this context, we shall refer to some of the decisions cited at the Bar, which throw some light on the question raised. A Division Bench of the Allahabad High Court in Emperor v. Sheo Ram ILR (1948) AU 34 : AIR 1948 All 162 (A) ruled that a person can be convicted of an offence read with Section 34 I.P.C. if the facts of the case justify it and if the accused has not been misled in his defence and if there has been no failure of justice irrespective of the fact whether the charge framed against him mentions Section 34 or not or the charge framed against him was a charge of an offence read with Section 149, Penal Code.
In that case, the accused were charged under Section 325 read with Section 149 whereas they were convicted under Section 325 read with Section 34 I.P.C. But, in the course of the judgment, the learned Judges also dealt with a case where the charge is only for the substantive offence. Relying upon Sections 225, 232, 535 and 537 Criminal P.C. the learned Judges pointed out that the mere omission of Section 34 in the charge does not bar the conviction of the accused for an offence read with that section.
At p. 36 (of ILR) (at p. 162 of AIR) they indicate that Section 34 does not create an offence but simply lays down a principle of criminal liability and, therefore, it is not necessary to mention it in the charge. The following pertinent remarks of the learned Judges at p. 37 (of ILR) (at p. 163 of AIR) may usefully be extracted:
All these various provisions of the Criminal Procedure Code have one thing in common and that is that unless the accused is misled and failure of justice has occurred, any error or omission in the charge will not justify the setting aside of the conviction, what happens when an accused is convicted of an offence read with Section 34, while be is charged either for that offence read with Section 149, Penal Code or with that offense only, is that the Court omits to mention the circumstances justifying the operation of Section 34 Penal Code, in the charge or in addition to the omission, mentions different circumstances justifying a reference to Section 149 in the charge.
If the facts alleged and proved in a case justify the applicability of Section 34, the mere fact that the Court has framed the charge with the help of Section 149 or without it and without a mention of Section 34 will not bar the Court from recording a conviction of the accused for that offence read with Section 34 unless of course the accused is found to have been prejudiced in some manner.
That Section 34 does not create an offence but only lays down a rule of law has been laid down by various High Courts. See Barendra Kumar Ghosh v. Emperor 52 Cal 197 : AIR 1925 PC 1 (B), Bhondu Das v. Emperor 7 Pat 758 : AIR 1929 Pat 11 (C) and Waryam Singh v. Emperor AIR 1941 Lah 214 (D). The Supreme Court in Dalip Singh v. State of Punjab : 1SCR145 made some observations, which introduced some doubt in the aforesaid well recognised doctrine. There, the accused were convicted under Section 302 read with Section 149. IPC. The Sessions Judge, while throwing some doubt on the question whether there were more than five members, who took part in the offence, convicted them under Section 302 read with Section 149 I.P.C.
The Supreme Court pointed out that the conviction was bad under Section 149 unless the accused were more than five in number. They reviewed the evidence over again and held that more than five persons took part in the offence and, on that finding, confirmed the conviction given by the Sessions Judge. In passing, they made the following remarks at page 366:
Nor is it possible in this case to have recourse to Section 34 because the appellants have not been charged with that even, in the alternative and the common intention required by Section 34 and the common object required by Section 149 are far from being the same thing. In the circumstances, we find ourselves unable follow the conviction to rest on the insecure foundation laid by the High Court.
But these observations were reconsidered by the Supreme Court in Karnail Singh v. State of Punjab : 1951CriLJ768 . There the accused were charged under Section 302 read with Section 149. But the accused were convicted under Section 302 read with Section 34. It was argued before their Lordships that the conviction was bad because there was no charge under Section 34 and, in support of their contention, reliance was placed upon the observations made by the Supreme Court in Daliph Singh v. State of Punjab (E) Venkatarama Ayyar J., who delivered the judgment on behalf of the Court made the following observations in that context:
We do not read the observations in AIR 1953 SC 364 (E) as an authority for the broad proposition that in law there could be no recourse to Section 34 when the charge is only under Section 149. Whether such recourse can be had or not must depend on the facts of each case. This is in accord with the view taken toy this Court in Luchhman Singh v. The state : 1952CriLJ863 where the substitution of Section 34 for Section 149 was upheld on the ground that the facts were such that the accused could have been charged alternatively either under Section 302 read with Section 149 or under Section 302 read with Section 34.
Dealing with the argument that there should not be a conviction under Section 34 when the charge was under Section 149, the learned Judge remarked:
It is true that there is substantial difference between the two sections but as observed by Loro Summer in AIR 192b PC 1 (B) they also to some extent overlap and it is a question to be determined on the facts of each case whether the charge under Section 149 overlap the ground covered by Section 34. If the common object which is the subject matter of the charge under Section 149 does not necessarily involve a common intention then the substitution of Section 34 for Section 149 might result in prejudice to the accused and ought not therefore to be permitted.
But if the facts to be proved and the evidence to be adduced with reference to the charge under Section 149 would be the same if the charge were made under Section 34, then the failure to charge the accused under Section 34 could not result in any prejudice and in such cases the substitution of Section 34 for Section 149 must toe held to be a formal matter.
28. The Supreme Court had again to consider the question in Suraj Pal v. State of Uttar Pradesh : 1955CriLJ1004 whether the accused can be convicted under the substantive Section 302 I.P.C. when they were charged only under Section 149 read with Section 302 I.P.C. Their Lordships held that the direct individual liability of a person can only be fixed upon him with reference to a specific charge in respect of the particular offence and the framing of such a charge is the foundation for a conviction. On that ground, they held that the conviction was bad. This is a converse case. A person, who is charged for constructive liability only, would certainly be prejudiced if he is convicted for a substantive offence under Section 302 I.P.C.
29. Prom the aforesaid discussion of the case law, it is clear that Section 34 does not create a different offence but only lays down a principle of criminal liability. The accused, therefore, whether charged for an offence under Section 302 slmpiiciter or read with Section 149 can be convicted under Section 302 read with Section 34 I.P.C. if the facts to be proved and the evidence to be adduced would be the same, for in that case the non-mention of Section 34 in the charge could not result in any prejudice to the accused. We would adopt the following test laid down by Ratanlal in his Law of Crimes at page 69:
In considering the legality of the conviction in such circumstances the test is whether the facts which it was necessary to prove and on which evidence was given of the charge upon which the accused was actually tried are the same as the facts upon which he was convicted.
30. In the present case, as we have already indicated, the accused were charged under Section 148. In that charge, it was expressly mentioned that the common object of the unlawful assembly of which the accused were alleged to be members was to kill Gandi Thirupathl. They were also charged for having committed the offence of murder in the course of the same transaction.
To support those charges, the prosecution adduced evidence to establish that there were quarrels between the group of Thirupati and the party of the accused, that the accused belonged to the same party and connected with each other, that immediately prior to the offence, feelings were aroused by Thirupathi taking lease of the lands belonging to the Board High School, that the accused went together with sticks and beat Thirupathi in the compound of the cinema, that after the deceased fell down and was again beaten, the second accused dragged the deceased out of the compound and left him in the drain and that thereby they came again with sticks and seeing the deceased still alive beat him with sticks.
The injuries found on the body indicate that the deceased must have been mercilessly thrashed with sticks and the Doctor is of the view that death was due to shock resulting from the cumulative effect of the injuries. On the facts we have no doubt that there was a pre-arranged plan to murder Thirupathi and that the accused came armed with sticks to carry out their intention.
Even if there was any doubt at the time of the first beating whether the intention was to kill Thirupathi or only to give him a good beating, the second beating in the drain clearly indicates that they resolved to kill him. After a person was mercilessly beaten and was thrown in a drain when the same people came back again and seeing the man still with life went on beating him with sticks till he died, there is no difficulty in coming to the conclusion that they had the common intention of killing him.
31. To support the charges levelled against the accused, all the aforesaid facts were alleged and proved by the prosecution. Those facts proved on. the evidence adduced clearly sustain a conviction under Section 302 read with Section 34, I.P.C. It cannot be said that the accused were prejudiced by there being no charge under Section 34 for they were put on notice of the prosecution case, which if established, would sustain also a conviction under Section 34. We, therefore, hold agreeing with the Court below, that the accused were guilty of an offence under Section 302 I.P.C. read with Section 34 I.P.C.
32. Nor can we accept the learned Counsel's argument that the accused were not guilty of murder. The circumstances under which Thirupathi was beaten, the nature of the weapons and the manner in which the wounds were inflicted and the nature of the wounds inflicted clearly establish that the accused beat the deceased with the intention of committing murder or with the intention of causing such bodily injury as the accused knew to be likely to cause the death of that person.
33. It is then contended that the trial was bad because of misjoinder of charges. Section 235. Cr. P.C. indicates that, if in one series of acts so connected together as to form the same transaction more offences than one are committed by the same person, he may be charged with and tried at one trial for every such offence. The learned Counsel concedes that the charges as framed relate to the earns transaction within the meaning of Section 235 Criminal P.C.
But what he contends is that the prosecution in order to confer jurisdiction on the Sessions Court, deliberately and falsely introduced the case of unlawful assembly to bring in the three different offences for which the accused were charged within the fold of one trial and, therefore, the legal position is as if the accused were charged for three different and unconnected offences.
In support of his contention, reliance is placed upon the observation of the learned Sessions Judge to the effect that five accused were impleaded in the incident only to lend support to the prosecution case that the accused formed themselves into an unlawful assembly. We have gone through the entire evidence carefully. We cannot attribute to the prosecution any such deliberate attempt to club in the three unconnected incidents by setting up a case of unlawful assembly.
The prosecution has examined a number of witnesses in support of its case. It may be the learned Judge has not accepted that evidence. It is possible for another Judge to come to a different conclusion. We cannot, therefore, hold that the prosecution introduced the case of unlawful assembly as a device to club the different incidents in one trial. We, therefore, hold that there are no merits in this plea.
34. In the result, the appeal is dismissed and the convictions and sentences passed on the accused are confirmed.