Harnam Singh, J.
1. In Criminal Trial No. 8 of 1953 Atma Singh, Udham Singh, Bachan Singh, Niranjan Singh, Sohan Singh and Dalip Singh were prosecuted for having committed the murder of Tara Singh on 11-11-1951, at Village Butt, District Amritsar. In that trial the learned Additional Sessions Judge has given benefit of the doubt to Bachan Singh, Sohan Singh, Niranjan Singh and Dalip Singh and acquitted them. Atma Singh and Udham Singh have been convicted under Section 302 read with Section 149 and Section 148, Penal Code, hereinafter referred to as the Code, and sentenced to transportation for life under Section 302 and to one year's rigorous imprisonment under Section 148 of the Code, sentences to run concurrently. Atma Singh and Udham Singh appeal.
2. Briefly summarised the facts of the case are these: On the night between the 10th and 11th of November, 1951, Harnam Singh P. W. 2 and Tara Singh worked Sundersinghwala well. Mohan Singh P. W. 3 came to that well on the morning of 11-11-1951 and asked Tara Singh to lend a plough as his own had broken. Tara Singh told him that the plough was lying at his house and would give the plough to him when he went to take his tea. After some time Tara Singh accompanied by Mohan Singh proceeded towards his house. Hirnam Singh, father of Tara Singh, followed Tara Singh and Mohan Singh. In the way Tara Singh and Mohan Singh saw the six accused emerging from the 'cherri' field of Amar Singh. Tara Singh had 'prani' in his band while Mohan Singh and Harnam Singh were empty handed. Atma Singh accused was armed with 'kulhari' while Udham Singh carried 'kirpan' Niranjan Singh, Sohan Singh, Dalip Singh and Bachan Singh carried spears.
Seeing the accused Tara Singh ran towards the village and entered the house of Bahadur Singh. The accused entered that house and surrounded Tara Singh. Atma Singh accused caused injuries to Tara Singh with 'kulhari' while Udham Singh caused injuries with 'kirpan'. No injury was caused to Tara Singh by Niranjan Singh, Sohan Singh, Dalip Singh, Bachan Singh and Tara Singh died at the spot.
3. Harnam Singh P. W. 2 reported the incident to Assistant Sub Inspector Indar Singh at Tara Taran-Jandiala Octroi Post at 10 a.m. on 11-11-1951.
4. Doctor Sham Singh who performed 'post mortem' examination on the body of Tara Singh found nine incised wounds, two contused wounds and several abrasions on different parts of the body. In the opinion of Doctor Sham Singh incised wounds inflicted on the head of Tara Singh Were individually fatal.
5. In giving reasons for the acquittal of Bachan Singh, Sohan Singh, Niranjan Singh and Dalip Singh the Additional Sessions Judge said:
The eye-witnesses depose that Atma Singh accused was armed with a 'kulhari', Udham Singh with a 'kirpan' and the other four accused with spears, that Atma Singh and Udham Singh accused inflicted blows to Tara Singh deceased with their respective weapons and that Niranjan Singh, Sohan Singh, Dalip Singh and Bachan Singh accused surrounded him. Spear is a more deadly weapon than either a 'kulhari' or a kirpan' and it has a very long handle and it can be used from a distance. If the six accused had come fully armed with the object of murdering Tara Singh, as alleged by the prosecution, it is difficult for me to believe that the four accused, who were armed with spears, did not make use of their weapons. The only part assigned to them is that they surrounded the deceased and asked Atma Singh and Udham Singh to do away with Tara Singh.
It is beyond my comprehension that persons armed with deadly weapons like spears who had come with full determination of murdering Tara Singh would content themselves with mere playing of a minor part mentioned above. In fact they would have taken a leading part in making a free use of their dangerous spears to inflict mortal blows to Tara Singh and finish him as quickly as possible. It is possible that the said part may have been assigned to these four accused simply to add to the number of assailants. There is a general tendency amongst the village people to include as many relations and friends of the real culprits as possible'. Moreover, there is another important factor in this connection which raises a doubt in my mind, namely, that there was absolutely no motive for Dalip' Singh accused to participate in this crime.
6. From the judgment under appeal it is plain that the additional Sessions Judge thought that Niranjan Singh, Sohan Singh, Dalip Singh and Bachan Singh had been implicated in the murder of Tara Singh to involve as many relations and friends of the real culprits as possible. That finding is not challenged in these proceedings and on a perusal of the record I concur in that finding.
7. In applying Section 149 of the Code the cow* must find with certainty that there were at least five persons sharing the common object. The finding that four out of the six accused, may haw been named simply to add to the number of the assailants betrays uncertainty about the participation of at least five persons in the crime. In no part of the judgment does the Additional Sessions Judge come to the conclusion that at least five persons participated in the crime though the identity of one of more was in doubt. That being so the case does not come within Section 149 of the Code.
8. In order to bring the case within. Section 149 Of the Code, it is necessary to show among other things, that the offence has been committed by a member of an unlawful assembly as defined in Section 141 of the Code. In such a case the essential question is whether the number of persons who took part in the crime was five or more than five.
9. In - 'Kapildeo Singh v. The King' AIR 1950 FC 80 (A), Mahajan, J., delivering the judgment of their Lordships of the Federal Court said:
The essential question in a case under Section 149 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 149 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.
10. In regard to the application of Section 149 of the Code - 'Dalip Singh v. State of Punjab : 1SCR145 , may be seen.
11. In - 'Dalip Singh v. State of Punjab (B), the facts were these. In Sessions Trial No. 5 of 1951 the Sessions Judge convicted seven persona under Sections 302 and 452 read with Section 149 and Section 148 of the Code. On appeal the conviction of four accused under Sections 302 and 452 read with Section 149 and Section 148 of the Code was upheld. As regards the three accused who were acquitted the learned Judges said:
The other three accused may or may not have taken part in the affair.
12. In Criminal Appeal No. 22 of 1953 Bose J. delivering the judgment of their Lordships of the Supreme Court said:
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.
13. In Sessions Trial No. 8 of 1953 the six accused were tried on the following charges:
First: that you on or about 11-11-195,1, within the area of village Butt were members of unlawful assembly and in prosecution of the common object of such assembly 'viz.' to murder Tara Singh deceased committed the offence of rioting while armed with deadly weapons like spears, 'kulhari' and 'kirpan', and thereby committed an offence punishable under Section. 148, Penal Code and within the cognizance of the Court of Session.
Secondly: that you on or about 1141-1951 within the area of village Butt were members of an unlawful assembly and in prosecution of the common object of such assembly committed the murder of Tara Singh deceased with 'kulhari' and 'kirpan' etc. and thereby committed an offences punishable under Section 302/149 of the Penal Code and within the cognizance of the Court of Session.
14. Finding as I do, that Section 149 of the Code has no application to the facts of the case the question that arises, for decision is weather the accused can be punished under Section 302 read with Section 34 of the Code.
15. Section 34 of the Code refers to cases in which several persons both intend to do and do a criminal act; it does not refer to cases where several persons intend to do an act and some one or more of them do an entirely different act. In he latter class of cases Section 149 of the Code may be applicable but Section 34 is not.
16. In - 'Dalip Singh v. State of Punjab (B)' Bose, J., said:
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 my judgment, the case does not fall to be considered under Sections 149 and 34 of the Code. That being so, no question of constructive liability arises in the case.
17. Now, it is said that the Court of Session having refused to act on the evidence given by Harnam Singh P. W. 2, Mohan Singh P. W. 3, and Tara Singh P. W. 4 'qua' Bachan Singh, Sohan Singh, Niranjan Singh and Dalip Singh, it would be unsafe to maintain the conviction of Atma Singh and Udham Singh on the evidence given by them.
18. As stated hereinbefore, Doctor Sham Singh found nine incised wounds, two contused wounds and several abrasions on the body of Tara Singh. Clearly, the assailants of Tara Singh were two or more than two. Harnam Singh, Mohan Singh and Tara Singh gave evidence that Atma Singh gave blows with the sharp and blunt edge of the 'kulhari', while Udham Singh gave 'kirpan' blows. In the opinion of Doctor Sham Singh injuries found on the body of Tara Singh were caused by 'kulhari' and kirpan'. If so, the evidence given by Harnam Singh, Mohan Singh and Tara Singh finds corroboration in the medical evidence.
19. Then it is said that the non-production of Bahadur Singh 'mazbi' militates against the truth of the prosecution story.
20. In the Court of Session Shri Bindra Ban, Public Prosecutor, gave up Bahadur Singh as having been won over by the accused. Bahadur Singh was present in the Court of Session but was not examined by the appellants. In these circumstances, the non-production of Bahadur Singh by the prosecution does not adversely affect the prosecution case.
21. Having given the evidence my anxious consideration I find that the participation of Atma Singh and Udham Singh in the incident in which death of Tara Singh was caused is not open to any doubt.
22. Doctor Sham Singh gave evidence that injuries Nos. 1, 2, 5 and 6 described at page 29 of the record were individually fatal. Prom the evidence examined at the trial it is impossible to ascribe any particular injury to Atma Singh or Udham Singh. If so, neither the conviction of Atma Singh nor of Udham Singh under Section 302 of the Code can be sustained.
23. In the result, I would set aside the conviction of Atma Singh and Udham Singh under Sections 302 and 148, convict them under Section 324 of the Code and sentence them to suffer rigorous imprisonment for three years each.
24. I agree.