B.N. Nigam, J.
1. Bisheshwar has been found guilty of an offence under Section 302 read with Section 34, Indian Penal Code. He has been sentenced to imprisonment for life. Two other persons, UmraoLal and Chhedl, who were charged with an offence under Section 302 read with Section 34, Indian Penal, Code along with Bisheshwar, were given the benefit of doubt and were acquitted by the learned Sessions Judge, Bahraich. Against his conviction and sentence Bisheshwar has filed this represented appeal.
2. The prosecution case is that the parties reside in village Bantwara, police station Payagpur, district Bahraich. Jhagru deceased and Umrao Lal. acquitted, were step' brothers. Their father, Ram Adhar, is still alive. Jhagru used to live separately. Umrao Lal lives with his father. Jhagru had only 11 bighas of land in village Kamolia and he claimed more as due to him. On 8-9-1960 a Panchayat was held. This was attended by P.W. 5 Ram Naraln, P.W. 7 Dal Thomman Pradhan, P.W. 14 Birey and others including P.W. 15 Ram Tirath. The decision of the Panchayat is contained in Ext. Ka 1. Jhagru was allotted another 14 bighas of land in village Kamolia. The land in village Bantwara was to remain with Umrao Lal. In lieu of his share of the wheat crop in village Kamolia Jhagru was to get 2.8 maunds. Ext, Ka 1 remained with Dal Tramman. There was some mustard crop in village Kamolia. Jhagru wanted a share. Another Panchayat was convened on the day after the Holi. P.W. 7 Dal Thamman, P.W. 8 Rajjan, c.w. 14 Birey and P.W. 15 Ram Tirath were again present. Ram Tirath is son of the deceased Jhagru. Nothing was decided as in the Panchayat UmraoLal showed temper and threatened to do away with Jhagru even if it cost him Rs. 50/-or Rs. 100/-.
3. Some time later Jhagru cut a Babul tree in village Bantwara. There was an altercation between Jhagru and Umrao Lal and Umrao Lal gave application Exht. Ka 25 to the Superintendent of Police against Jhagru and Ram Tirath. On 5-3-1961 he also lodged report Ext. Ka 23. Then mutation proceedings started in respect of 14 bighas of land in village Kamolia. The prosecution case is that UmraoLal decided to do away with Jhagru and secured the assistance of Chhedi and Biseshwar. On the night of 18th March, 1931, when Ram Tirath had gone to village Kamolia, Chhedi went to Jhagru one Pahar after nightfall to persuade him to accompany him to Bairagi Bagh on the pretext of eating honey. P.W. 6 Faujdar saw them going towards Bairaghi Bagh. Jhagru told him that he was going to eat honey and asked Faujdar to accompany him. Faujdar, however, excused himself. At that time Chhedi was armed with an axe.
4. A little later the same night P.W. 1 Bhairon Prasad was returning from village Dugdugiapur, hamlet of Sirpur. He heard rustling of dry leaves and flashed his torch. He saw Chhedi and Jhagru near a hallow in a mango tree in Bairagi Bagh. When he reached near Ranipurwa hamlet of Bantwara, he saw Umrao Lal and Bisheshwar coming from Ranipurwa. Umrao Lal had a gunny bag with him. The prosecution case, is that these two persons went to Bairagi Bagh. There Umrao Lal asked Bisheshwar to catch hold of Jhagru's neck. This he did. Then Chhedi gave blows with an axe and UmraoLal gave blows with a gandasa. Bisheshwar was holding the neck of the deceased when the blows were given. He received injuries on his hands. Then the corpse was put in the gunny bag, taken to the Mahrawa well and thrown in it. At that time it was a little after midnight. P.W. 3 Khuda Baksh and P.W. 4 Daha were returning from a drama in Dandauli to their village Oohru. They heard a sound of something falling in the Mahruwa well and 40 50 paces ahead they met UmraoLal and Chhedi who were at that time only 2-3 paces from them. On being questioned, Umrao told them that he had gone for some work. Jhagru was not seen alive after that night. On 20-3-1961, i.e., one and a half day after Jhagru's leaving his house, some children saw a gunny bag floating in the well, they also saw blood on parapet. They informed P.W. 2 Ram Sagar Pradhan. He came to the well and sent report Ext. Ka 5. to police station Payagpur through P.W- 9 Abad Ali.
5. No Sub-Inspector and no Head Moharrir was present at the thana. The report was recorded by the clerk constable and he sent information to P.W. 22, Head Moharrir Sheo Charan Yadava, in village Suchauli. Sheo Charan came to the well, recovered blood-stained bricks and got the gunny bag taken out. On opening, it was found to contain a human corpse. This was identified by Malkhey Behna, Jhagru's wife and P.W. 15 Ram Tirath as the corpse of Jhagru. Then inquest was held and the corpse was sent for postmortem examination. The post-mortem report was received on 21-3-1961. Then a case under Section 302 read with Section 201, Indian Penal Code was registered and in the evening information was sent to Second Officer P.W. 28 S.P. Tewari. Sub-Inspector R.P. Tewari received information at village Khutehna at 10.00 P.M. on 21-3-1961. He went to village Dohru and reached there at 9.00 A.M. on 22-3-1961. He prepared site-plan Ext. Ka 30 of the well. Then he interrogated witnesses of that village and from there he went to village Bantwara reaching there at 12 noon. He examined witnesses there including P.W. 7 Dal Thamman and P.W. 15 Ram Tirath. Then he went to Bairagi Bagh and prepared site-plan Ext. Ka 31. He also took bloodstained earth in his possession. He searched for the accused. He went to Bisheshwar's house. Bisheshwar was not found. Bisheshwar's wife, however, handed over a blood-stained dhoti Ext. VII which had been washed. Chhedi was brought (under arrest by constables at 8.30 A.M. on 23-3-1961. He made a statement to the investigating officer, took him to his own house and from a cornbin delivered blood-stained axe Ext. V and Kurta Ext VI, A site-plan of the locality was prepared. It is Ext. Ka 35. UmraoLal was arrested on 23-3-1961.
6. In the meantime, before the arrival of the police on the spot, on 21-3-1961, P.W. 7 Dal Thamman was told that Bisheshwar had injuries on his hands and was keeping himself in concealment. Thereupon taking P.W. 5 Ram Narain, P.W. 14 Birey and others with him, P.W. 7 Dal Thamman went to Bisheshwar's house and called him out. Bisheshwar came out. On being questioned about his injuries, he made an extra-judicial confession. Dal Thamman Was greatly annoyed and gave expression to his anger. Thereupon Bisheshwar, pretending that he wanted to ease himself, slipped away. On 25-3-1961 Bisheshwar along with one Chittan, said to be his father-in-law, went to P.W. 27 Ram Samujh Tewari, Vakil, and told him the facts.
Application Ext. Ka 9 was drafted in the presence of P.W. 17 Ram Dularey and vakalatnama paper No. 9C was executed. Bisheshwar's finger impression was attested by Chittan. Both the thumbs of Bisheshwar had injuries and, therefore, the impression of the finger was taken. He was then taken to the Additional District Magistrate, P.W. 10 A.R. Khan at his house. The Magistrate took Bisheshwar in custody and made a note about his injuries. Bisheshwar was putting pn blood-stained Dhoti Ext. IX and shirt Ext. VIII. These were under the direction of the Magistrate taken in possession of by the Court Moharrir P.W. 11 Mohammad Mujtaba. The investigating officer learnt of his surrender and on 27-3-1961 he submitted a report for recoraing Hisne-shwar's confession. Bisheshwar, however, did not confess. His injuries were examined by the Jail Doctor, Dr. R.C. Vedi on 26-3-1981 at 7.40 A.M. A charge-sheet was submitted against the appellant and two others on 13-4-1961.
7. The defence is one of denial. It is suggested that the appellant was arrested in his village and then taken to the police club at Bahraich. It was further stated that the contents of application Ext. Ka 9 were not explained to him and he was taken to the Additional District Magistrate by P.W. 27 Ram Samujh Tewari with the investigating officer following a little behind him. It was further pleaded that the injuries on the accused's hands were not received at the time of the incident but had been received some 13-14 days before his surrender. The explanation was that the appellant was lying on a cot wearing a gold Tavis. Then a thief had come who wanted to remove the Tavis. On resistance being offered, the thief caused the injuries in question.
8. The murder is alleged to have been committed on the night between the 18th and 19th of March, 1961. Nobody, however, seems to have noticed the absence of Jhagru. His wife is said to be a half wit and his son P.W. 15 Ram Tirath was probably not in the village. The corpse was noticed on 20th March, 1961. Then the Pradhan sent information. This report was lodged at 12.15 noon on 20th March, 1961. No question of delay arises and no arguments have been addressed to us on this point.
9. The factum of death and the identity of the deceased as also the time, place and cause of death have not been challenged before us. The prosecution case is that the murder was committed on the night between the 18th and 19th March, 1961. At the time of the post-mortem examination held on 21-3-1961 at 11.30 A.M. Dr. B.N. Chatterji Civil Surgeon was of opinion that death was caused 2 1/2 days before the post-mortem examination. Some partially digested Makka was found in the stomach of the deceased. It is, therefore, clear that the murder must have been committed some time at about 10.00 or 11.00 P.M. on 18th March, 1961.
10. The prosecution case is that the murder was committed in Bairagi Bagh and then the corpse was thrown in Wahriiwa well. Blood-stains wers found both in Bairagi Bagh and on the well. Soma mango leaves were found sticking Jo the body by Dr. B.N. Chatterji. This is substantial support for the prosecution allegation which has not been challenged by the learned Counsel before us.
11. At the time of the post-mortem examination 12 injuries detailed in post-mortem report Ext. Ka 2 were found on the dead body. All of them were ante-mortem. It is not necessary for our purposes to give the details of those injuries as the learned Counsel has not challenged the prosecution allegation that these injuries were caused with axe and gandasa. The opinion of the doctor that death resulted from shock and bleeding and that the injuries were sufficient.in the ordinary course of nature to cause death has also not been challenged. We accept it.
12. There is no eye witness of the incident. The prosecution case against the appellant rests on circumstantial (evidence. The circumstances may be considered in some detail.
13. As regards motive, there is no assertion that Bisheshwar appellant had any motive to commit the murder of the deceased. There was ample enmity between Umrao Lal and Jhagru. The only allegation is that Bisheshwar used to work for Umrao Lal. That may have induced Bisheshwar to agree to help UmraoLal but that does not mean that he had any sufficient motive himself to commit the murder.
14. The second link against the appellant is that he was seen going towards Bairagi Bagh by P.W. 1 Bnairon Prasad. The learned Sessions Judge was of opinion that this evidence had been concocted by the investigating Officer. He was further of opinion that the evidence of P.W. 3 Khuda Baksh and P.W. 4 Daha as also of P.W. 6 Faujdar and the evidence of recovery from Chhedi was suspicious and appeared to him to be concocted. The main reason was that this evidence was not available up to 20-3-1961. We are not satisfied regarding the correctness of the conclusions arrived at by the learned Sessions Judge. Till 20th March, when the corpse was recovered, these ordinary stray circumstances did not assume any importance and, therefore, there was no reason for mentioning what the witnesses had seen. It was only when the corpse was recovered in iMahruwa well and blood-stains were noticed in Bairagi Bagh that the observations of these witnesses assumed importance. It may also be that their correct relevancy and importance could not be judged by the people in the village and it was only with the arrival of the investigating officer that some importance was attached to these. We are, therefore, of opinion particularly as no serious enmity has been alleged against Bhairon Prasad, that there is no reason for flur doubting the testimony of P.W. 1 Bhairon Prasad.
15. The third circumstance agains't the appellant is an extra-judicial confession made by him. Actually two extra-judicial confessions were made, one on 21-3-1961 in the village and the other on 25-3-1961 to P.W. 27 Ram Samujh Tewari. The learned Sessions Judge has rightly excluded the alleged statement to the Magistrate for he failed to record the statement in accordance with the provisions of Sections 164 and 364, Code of Criminal Proce-'jdure. Ext. Ka 9 may, however, be taken to be a record prepared under the direction of P.W, 27 Ram Samujh Tewari at a time when the statement made to him was fresh in his memory, it has, therefore, rightly been used by She learned Trial Judge as a record of substantively what the appellant had stated to Ram Samujh Tewari. That statement is also available as corroborative of the evidence of P.W. 5 Ram Narain and P.W. 14 Biray even though P.W. 7 Dal Thasman has now attempted to weaken the evidence by certain contradictions as regards Chhedi's part at the time of the incident and the presence of Ram Asrey Chaukidar when the statement was made by the appellant.
16. The learned Counsel has not urged before us anything against the correctness of the conclusion arrived at by the learned Sessions Judge regarding the admissibility and the proof of these extra-judicial confessions. The law, at it stands, clearly lays down that an extra-judicial confession, if satisfactorily proved to have been voluntarily made, may be the basis for a conviction even in the absence of corroboration.
17. In the present case, however, some corroboration is available. Several injuries were found on the person of the appellant when he was admitted to the jail. The state; ment of Dr. R.C. Vedi, who was examined before the committing Magistrate as P.W. 6, was exhibited in the trial Court as exhibit ka 38. He found five injuries. The last two, being abrasions in front of the knees, may be omitted from our consideration. The other three are incised wounds on the index finger of the left hand, the thumb of the left hand and the thumb of the right hand. It is noteworthy that all these injuries are on the back side. The learned Sessions Judge has also held that the appellant probably surrendered as these wounds had become septic. Whatever' may be the reason, the accused's assertion that these injuries were caused to him 13-14 days before his arrest is incorrect. Dr. R.C. Vedi gave the opinion that these injuries were about 8 days old at the time of his examination. In cross-examination he conceded that there may be a difference of one or two days in the duration though he later corrected himself and stated that the difference can be only a day or so. In any case, it is clear that the injuries could not have been 13-14 days old. The learned Counsel for the appellant has made no attempt to question the correctness of the opinion of Dr. Vedi. We, therefore, accept that these injuries clearly indicate that the appellant was present at the time the blows were given with the axe and the gandasa to the deceased. These injuries also clearly show that even when the blows were being given, the appellant was holding the neck of the deceased.
18. The next circumstance is the delivery of a bloodstained dhoti by the appellant's wife. On this point there is the evidence of P.W. 14 Biray and P.W. 28 Sub-Inspector R.P. Tewari, This evidence was accepted by the learned trial Judge and the correctness of that finding has not been doubted before us. The Chemical Examiner found blood on this dhoti but the Serologist could not discover its origin as the blood had disintegrated.
18a. And lastly at the time of surrender the accused's dhoti and shirt were taken in possession. The witnesses on this point are P.W. 10 A.R. Khan and P.W. 11 Mohammad Mujtaba. The Chemical Examiner found blood on both the clothes and the Serologist reported that the stains were of human blood.
19. Thus it would appear that there is satisfactory corroboration of the extra-judicial confession made by the appellant. The appellant produced no evidence in his defence and if this extra-judicial confession is sufficient to bring home the charge against the appellant, there can be no escape from a conviction.
20. Only two arguments have been addressed before us. The first contention of the learned Counsel is that we extra-judicial confession does not make out the prcsecution case that the murder was comnitiod in pursuance of she common intention of the murderers including the appellant. The learned Counsel suggests that the appellant went to Bairagi Bagn on the suggestion that there was some honey to be taken. When he reached Bairagi Bagh, the appellant was asked to catch hold of the deceased and he held him by. the neck. The suggestion of the learned Counsel is that up to this stage there is nothing positively leading to the conclusion that the appellant was privy to the design to murder Jhagru. The argument is that he may have caught hold of Jhagru's neck only because he thought that his friend wanted Jhagru to be held. If the matters rested at this stage, we may have had some difficulty but the statement contained in Ext. Ka 9 goes further. It states that all the three began to tussle with Jhagru. Then he stated:
Umrao aur Chhedi Jhagru ke upar gandasa aur kulhari chalane lage, ltne me mere dono hath par gandasa wa kulhari lagi.
We translate it as meaning that Chhedi and Umrao began to give blows with gandasa and Kulhari on Jhagru and while these blows were being given, the gandasa and the kulhari struck the appellant's hands also. The meaning of this sentence is clear. It is not suggested that it was the very first kulhari and the very first gandasa blow that struck the appellant's hands. To us it appears that the tenor of the whole statement is that while these blows were being given, injuries were caused to the appellant. If this is so, it would follow that the appellant continued holding Jhagru by the neck while he was being given gandasa and kulhari blows. On that interpretation the liability of the appellant would be clearly established.
21. If, on the other hand, we were to accept the suggestion of the learned Counsel, though we have no reason to do so, that the very first gandasa and the very first kulhari blow caused injuries to the appellant even then we are of opinion that the criminal liability of the appellant Is fully brought home. It would then follow that the appellant had caught hold of Jhagru's neck and continued holding him by the neck while the gandasa and the axe were raised and aimed at the deceased. Not only that but he continued holding the deceased by the neck till the blows were actually striking the deceased. On that view we do not see how the appellant can escape liability.
22. The learned Counsel has also pointed out to us that immediately after receiving the injuries the appellant fell down unconscious. We have found it a little difficult to accept this contention. The appellant has later stated that the corpse was taken away tied in a gunny bag. This does not appear to be a mere conjecture on the part of the appellant made after he had become unconscious. But apparently this positive statement would be made only if the appellant had actually seen the corpse being put into the gunny bag near the mango tree. We accept that the appellant knew that the gunny bag was taken and most probably tie had come to know that the corose was found in the gunny bag but he had no means of knowing whether the corpse was first taken to the well and put into the gunny bag near the well or in the grove or put into the gunny bag under the mango tree. The positive statement on this point cannot be based on an intelligent surmise but must be based on what he saw. It, therefore, follows that the statement that the appellant became unconscious is most probably Incorrect. However, it does appear from the statement of P.W. 3 Khuda Baksh and P.W. 4 Daha that the appellant was not a party to the removal of the corpse and to its being thrown into the well.
23. The subsequent conduct of the appellant elsa leads to the conclusion that the murder was committed In furtherance of a common intention. The appellant had received injuries and he knew that a murder had been committed but he did not give any information about it. When he was found out, he had to come out with an explanation and even in Ext. Ka 9 he has made the minimum statement necessary to explain the injuries on his person and lias pleaded that he became unconscious and even earlier he has stated that he did not commit the murder thereby he made every attempt to lessen his own criminal liability and the importance of the part played by him. This latter conduct, though not available as evidence, certainly may be used by us to lend re-assurance to the conclusion that we may draw from the extra-judicial confession and the injuries on the person of the appellant. On a consideration, therefore, we come to the conclusion that the contention of the learned Counsel that the extra-judicial confession does not bring the criminal liability home to the appellant is not, correct. We reject it.
24. The last contention of the learned Counsel is that the two other persons having been found not guilty and having been acquitted by the learned Sessions Judge it is not legally possible to record! a conviction against the appellant by utilising the provisions of Section 34, Indian Penal Code. In support of the contention the learned Counsel has relied on a decision of the Supreme Court in the case at Zabar Singh v. The State of Uttar Pradesh : 1957CriLJ581 . The facts of the case are a little peculiar. The learned Sessions Judge had found appellant Zabar Singh guilty along with two others Lal Man and Poti Ram, for the murder of Sahib Singh by shooting him. This conclusion of the learned Sessions Judge was in disregard of & dying declaration which mentioned two names other than those of Lalman and Poti Ram. In the High Court the oral-evidence was disregarded in favour of the dying declaration and Uma Shankar and Chandra Sen Jain were held to be the persons who had taken part in the murder along with the appellant Zabar Singh. The dying declaration also indicated that the fatal shot had not been fired by Zabar Singh. In these circumstances Govinda Menon, J. speaking for the Court stated s
it was not the prosecution case that anyone other than-Lalman and Poti Ram, was an associate of the appellant In the murder and the case having been found against them we have no evidence whatever that some unidentified and unknown persons, along with the appellant, committed the offence. So far as the appellant is concerned, the High Court has come to the conclusion that he did not play the chief role, meaning thereby that he did not fire the fatal shot.
The Learned Counsel has relied on the following passage;
The learned Judges of the High Court were apparently not alive to the situation created by the conclusions on facts which leave us with no option but to hold that the appellant is not guilty of the offence. Had they found Lalman and Poti Ram guilty, then the conviction by the Sessions Judge could have been upheld. Had they; on the other hand, relied entirely on the evidence of Chhotey Singh and Maiku that it was the appellant, who fired the fata! shot, then also his conviction could have been sustained, but, as stated by us already, there is no finding as to who committed the murder of Sahib Singh. In order that Section 34 may be applied in a case of this kind, the common intention of committing the crime must be attributed to more than one individual and if the offence Is the result of a joint act of more than one person, then only each one of them can be found guilty under Section 302 read with Section 34, I. P. C. There is no acceptable evidence whatever of a previous concert, and it is not known Who the other assailants were. In these circumstances and especially since the High Court has held that the appellant did not fire the fatal shot but only played the minor role, the conviction cannot be upheld.
25. We do not accept that this decision is an authority for the proposition that if three persons are charged with an offence under Section 302 read with Section 34, Indian Penal Code and two are acquitted, the third cannot be found guilty of an offence under Section 302 read with Section 34, Indian Penal Code. We would emphasise the word ''known' used towards the end in the last quoted passage. It was not. held that it was necessary that the offence should be brougnt home against those known assailants. In the particular case the circumstances were peculiar. At one time It was found that the appellant had the common intention with Lalman and Poti Ram. At another stage it was held that he had shared the common intention with Uma Shankar and Chandra Sen Jain. The oral evidence was also not accepted in toto and was only partially believed. The peculiar circumstances, therefore, in our opinion, governed the decision given and the Supreme Court did not intend to lay down a general rule of law.
26. In this view we are supported by other decisions of the Supreme Court. In the case of Dalip Singh v. State of Punjab : 1SCR145 , it was held in paragraphs 19 and 20:
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 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.
It, therefore, follows that the Supreme Court was clearly of opinion and laid down that if the Court was satisfied that there were in fact at least five persons taking part in the riot, The provisions of Section 149 of the Indian Penal Cods would be available even if less than five were being convicted and thus the rule of law would apply even if a specified number of persons was in fact prosecuted and it was not the prosecution case that there were any unidentified persons taking part in the incident. In Dalip Singh's case : 1SCR145 , there were seven persons who were originally prosecuted. Similarly in the case of Bharwad Mepa Dana v. State of Bombay : 1960CriLJ424 , 12 persons were put on trial. Of these seven were acquitted by the Sessions Judge and one was acquitted by the High Court. Thus only four were finally convicted and the learnea Judges stated:
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 that 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.
Their Lordships then quoted with approval the observations of the Federal Court in the case of Kapildeo Singh v. The King 1949 F C R 834 : AIR 1950 F C 80. The quotation is:
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 tnan 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.
The learned Judges stated:
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 appellants on the basis that in Kapildeo's case 1949 FCR 834 : AIR 1950 FC 80, the prosecution allegation was that there were 60 or 70 men in the unlawful assembly, makes any difference in the legal position.
Again in paragraph 20 it was stated:
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.
27. And lastly in the case of Kartar Singh v. State of Punjab AIR 1961 SC 1787, ten out of the 13 persons were acquitted.
The learned Sessions Judge held:
Although I feel that Daya Ram, Hamela and Kartara accused were accompanied by at least 9 or 10 persons but it is difficult to say who these 9 or 10 persons were.
On this point the High Court held:
The circumstances of this case leave no manner of doubt in our mind that there were a large number of persons on the side of the appellants and this number must have exceeded five, and was more or less near the number of persons who were actually accused in the case.
Discussing this question the Supreme Court held:
If the Courts below could legally find that the actual number of members in appellant's party were more than Five, the appellant's party will constitute an unlawful assembly even when only three persons have been convicted. It is only when the number of the alleged assailants is definite and all of them are named and the number of persons found to be proved to have taken part in the incident is less than five that it cannot be held that the assailants' party must have consisted of five or more persons. The acquittal of the remaining named persons must mean that they were not In the incident. The fact that they were named, excludes the possibility of other persons to be is the appellant's party and especially when there be no occasion to think that the witnesses naming all the accused could have committed mistakes in recognising them. This is clear from the observations in : 1SCR145 .
Now mistaken identity has never been suggested. The accused are all men of the same village and the eye-witnesses know them by name. The murder took place in daylight and within a few feet of the two eye-witnesses.
Then in paragraph 12 it was stated:
In this state of evidence, it is not possible to say that the Courts below could not have come to the conclusion that there were more than five persons in the appellant's party. It follows, therefore, that the finding of the Courts below that the appellant's party formed an unlawful assembly and that the appellant is constructively liable of the offences under Sections 302 and 307, I. P. C. in view of:s. 149, is correct.
28. In view of the above discussion, it appears to us that the first duty cast on a Court is to determine the number of the persons that in its opinion were involved in the incident. if it comes to the conclusion and records the conclusion without any doubt that an unlawful assembly was formed, then it may utilise the provisions of Section 149, Indian Penal Code even if actually the identity of less than five persons is established. Extending this principle to the particular case to which Section 34 of the Indian Penal Code applies, it must be held that the provisions of this section would be available whenever the Court can affirmatively 'conclude that more than one person actually took part in the crime and then it may be unable to establish the identity of other persons but that will not prevent it from utilising the provisions of Section 34, Indian Penal Code even While convisting only one person.
29. On the circumstances and the facts of the present case we are definitely and clearly of opinion that this crime must have been committed by more than one person. Two kinds of instruments appear to have been used. The appellant had injuries on both his hands suggesting, as he himself states, that the blows were being given by other persons. We, therefore, record the definite conclusion that at least three persons took part in this murder. We are, therefore, of opinion that we can utilise the provisions of Section 34, Indian Penal Code, even though the appellant has not been proved to have actually given any fatal injuries and in spite of the acquittal of Umrao Lal and Chhedi, co-accused.
30. No other point has been urged before us.
31. We are, therefore, of opinion that there is no force in this appeal and the conviction and the sentence of Bisheshwar must be upheld.
32. Accordingly, we dismiss the appeal and maintain the conviction of the appellant Bisheshwar under Section 302 read with Section 34 Indian Penal Code and the sentence of Imprisonment for life imposed on him thereunder. He is in jail custody and will serve out the sentence imposed on 'him.