Subba Rao, J.
1. This appeal by special leave is directed against the judgment of adivision Bench of the Bombay High Court setting aside the order of acquittalmade by the Additional Sessions Judge, Kolaba, and convicting the appellantunder s. 302, read with s. 34, of the Indian Penal Code and sentencing him toimprisonment for life.
2. The case of the prosecution may be briefly stated. In the year 1959, twopersons by name Ramachandra Budhya and Govind Dhaya were murdered by somepeople. In all 11 accused, including one Deoram Maruti Patil, were brought totrial; and out of them 8 accused, including the said Deoram Maruti Patil, wereacquitted. During that trial Deoram Maruti Patil's uncle, by name Vishwanath,actively helped Deoram Maruti Patil in the conduct of his defence. Accused 1and 2 in the present case are the sons of Govind Dhaya and accused 3 and 4 arethe nephews of Ramachandra Budhya. They bore a grudge against Vishwanath forhelping Deoram Maruti Patil and bringing about his acquittal. On August 19,1960, Vishwanath and one Mahadeo Pandu Patil left their village at about 8.30p.m. in order to go to Pezari en route to Alibag. When they were walking alonga bund, accused 1 to 4 came from behind, armed with long sticks and the stickcarried by accused 1 had a blade attached to it. They belaboured the deceasedresulting in his death.
3. The four accused had to stand their trial for the murder of Vishwanathbefore the Court of the Additional Sessions Judge, Kolaba. The charge againstthem was that they, in view of their common grudge against the deceased,combined together and did away with the deceased. The said four persons werecharged under s. 302, read with s. 34, of the Indian Penal Code for committingthe murder of the deceased in furtherance of their common intention. All ofthem were also charged separately for the substantive offence under s. 302 ofthe Indian Penal Code. All the accused pleaded not guilty to the charge. Whileaccused 1, 3 and 4 pleaded alibi, accused 2 raised a plea of private defence.The prosecution examined eye-witnesses, who deposed that the four accusedovertook the deceased when he was going to village Pezari and felled him downby giving him lathi blows. None of the witnesses spoke to the presence of anyother person, named or unnamed, who took part in the assault of the deceased.The learned Additional Sessions Judge found that the prosecution witnesses werenot speaking the truth and that the version given by accused 2 was the probableone. In the result he acquitted all the accused. The State preferred an appealto the High Court against the said order of acquittal under s. 302, read withs. 34, of the Indian Penal Code; but no appeal was preferred against the orderof acquittal under s. 302 of the Indian Penal Code. The judgment of the HighCourt discloses that the learned Judges were inclined to believe the evidenceof the witnesses, other than Kashinath and Shridar. But they dismissed theappeal against accused 1, 3 and 4 on the ground that the appeal was against anorder of acquittal. But in regard to accused 2, they held that he was one ofthe participants in the assault and there was no basis for his plea of privatedefence. Having come to that conclusion, the learned Judges convicted accused 2under s. 302, read with s. 34, of the Indian Penal Code. As regards the personswho participated in the assault along with accused 2, it would be appropriateto quote the words of the High Court itself :
'Some of the other accused were undoubtedlyconcerned with the incident along with accused No. 2. Since it is possible thatthe story as given by the prosecution witnesses, and particularly by Mahadeo,was exaggerated, it is not safe to hold that each one of the other accused wasalso a participant in the offence. In view of the possibility that one or moreof the other accused, i.e., accused Nos. 1, 3 and 4, might not haveparticipated in the offence, we do not propose to interfere with the acquittalof these accused. But we are satisfied that accused No. 2 along with one ormore of the other accused committed this offence and that accused No. 2 was,therefore, clearly guilty under section 302 read with section 34 I.P.Code'.
4. To put it in other words, they, acquitted accused 1, 3 and 4 on theground that it was doubtful whether any one of them participated in thecommission of the offence and convicted accused 2 on the ground that one or moreof them might have participated in the offence. Accused 2 has filed the presentcase against the judgment of the High Court.
5. The argument of learned counsel for the appellant may be put thus : Thelearned Additional Sessions Judge acquitted the accused under s. 302 of theIndian Penal Code and also under s. 302, read with s. 34, of the said Code. Theappeal in the High Court was confined only to the acquittal of the accusedunder s. 302, read with s. 34, of the Indian Penal Code. The charge as well asthe evidence was only directed against the four named accused as theparticipants in the common intention to commit the murder of the deceased. TheHigh Court having acquitted accused 1, 3 and 4, inconsistently convictedaccused 2 for having committed the murder of the deceased jointly with thethree accused who had been acquitted. To put it differently, the argument isthat when three of the four named accused, who were charged under s. 302, readwith s. 34, of the Indian Penal Code, were acquitted, the court could notconvict only one of the accused on the basis of constructive liability.
6. Learned counsel for the respondent counters this argument by stating thatthough the charge as well as the evidence was directed against the 4 namedaccused, a court could come to the conclusion that 3 of the 4 named accused arenot identified but more than one had taken part in the commission of theoffence and that in the present case on a fair reading of the entire judgmentwe should hold that the High Court found that though accused 1, 3 and 4 werenot identified, 3 unidentified persons must have taken part in the murder.Section 34 of the Indian Penal Code reads :
'When a criminal act is done by several persons, infurtherance of the common intention of all, each of such persons is liable forthat act in the same manner as if it were done by him alone.'
7. It is well settled that common intention within the meaning of thesection implied a pre-arranged plan and the criminal act was done pursuant tothe pre-arranged plan. The said plan may also develop on the spot during thecourse of the commission of the offence; but the crucial circumstance is thatthe said plan must precede the act constituting the offence. If that be so,before a court can convict a person under s. 302, read with s. 34, of theIndian Penal Code, it should come to a definite conclusion that the said personhad a prior concert with one or more other persons, named or unnamed, forcommitting the said offence. A few illustrations will bring out the impact ofs. 34 on different situations.
(1) A, B, C and D are chargedunder s. 302, read with s. 34, of the Indian Penal Code, for committing themurder of E. The evidence is directed to establish that the said four personshave taken part in the murder.
(2) A, B, C and D and unnamedothers are charged under the said sections. But evidence is adduced to provethat the said persons, along with others, named or unnamed, participatedjointly in the commission of that offence.
(3) A, B, C and D are chargedunder the said sections. But the evidence is directed to prove that A, B, C andD, along with 3 others, have jointly committed the offence.
8. As regards the third illustration, a Court is certainly entitled to cometo the conclusion that one of the unnamed accused is guilty of murder under s.302, read with s. 34, of the Indian Penal Code, though the other three namedaccused are acquitted, if it accepts the evidence that the said accused actedin concert along with persons, named or unnamed, other than those acquitted, inthe commission of the offence. In the second illustration, the Court can cometo the same conclusion and convict one of the named accused if it is satisfiedthat no prejudice has been caused to the accused by the defect in the charge.But in the first illustration the Court certainly can convict two or more ofthe named accused if it accepts the evidence that they acted conjointly incommitting the offence. But what is the position if the Court acquits 3 of the4 accused either because it rejects the prosecution evidence or because itgives the benefit of doubt to the said accused Can it hold, in the absence ofa charge as well as evidence, that though the three accused are acquitted, someother unidentified persons acted conjointly along with one of the named persons? If the Court could do so, it would be making out a new case for theprosecution : it would be deciding contrary to the evidence adduced in thecase. A Court cannot obviously make out a case for the prosecution which is notdisclosed either in the charge or in regard to which there is no basis in theevidence. There must be some foundation in the evidence that persons other thanthose named have taken part in the commission of the offence and if there issuch a basis the case will be covered by the third illustration.
9. In support of the contention that a Court, even in the firstillustration, can acquit 3 of the 4 accused named in the charge on the groundthat their identity has not been established, and convict one of them on theground that more than one took part in the commission of the offence, relianceis placed upon the decision of this Court in Mohan Singh v. State of Punjab Su 3 S.C.R. 848. There, the appellants, along with threeothers, were charged with having committed offence under s. 302, read with s.149, as well as s. 323, read with s. 149, of the Indian Penal Code. TheSessions Judge acquitted two of them, with the result 3 of them were convicted.One of the accused was convicted under s. 302 and s. 147 and two of the accusedwere convicted under s. 302, read with s. 149 and s. 147, of the Indian PenalCode. The High Court confirmed their convictions. On appeal by special leave tothis Court, two of the accused convicted under s. 302, read with Sections 149 and147, of the Indian Penal Code, contended, inter alia, that as two of the fiveaccused were acquitted, their conviction under s. 302, read with Sections 149 and147, was bad in law. This Court held on the evidence that the said two accusedhad done the act pursuant to a pre-arranged plan and therefore they could beconvicted under s. 302, read with s. 34, of the Indian Penal Code. But in thecourse of the judgment different situations that might arise in the context ofthe question now raised were noticed. Adverting to one of the situationssimilar to that now before us, this Court observed :
'Cases may also arise where in the charge, theprosecution names of five or more persons and alleges that they constituted anunlawful assembly. In such cases, if both the charge and the evidence areconfined to the persons named in the charge and out of the persons so named twoor more are acquitted leaving before the court less than five persons to betried, then s. 149 cannot be invoked. Even in such cases, it is possible thatthough the charge names five or more persons as composing an unlawful assembly,evidence may nevertheless show that the unlawful assembly consisted of someother persons as well who were not identified and so not named. In such cases,either the trial court or even the High Court in appeal may be able to come tothe conclusion that the acquittal of some of the persons named in the chargeand tried will not necessarily displace the charge under section 149 becausealong with the two or three persons convicted were others who composed theunlawful assembly but who have not been identified and so have not been named.In such cases, the acquittal of one or more persons named in the charge doesnot affect the validity of the charge under section 149 because on the evidencethe court of facts is able to reach the conclusion that the persons composingthe unlawful assembly nevertheless were five or more than five. It is true thatin the last category of cases, the court will have to be very careful inreaching the said conclusion. But there is no legal bar which prevents thecourt from reaching such a conclusion.'
10. It will be seen from the said observations that this Court wasvisualizing a case where there was evidence on the record from which the courtcan come to such a conclusion. It may be that the charge discloses only namedpersons; it may also be that the prosecution witnesses named only the saidaccused; but there may be other evidence, such as that given by thecourt-witnesses, defence witnesses or circumstantial pieces of evidence, whichmay disclose the existence of named or unnamed persons, other than thosecharged or deposed to by the prosecution witnesses, and the court, on the basisof the said evidence, may come to the conclusion that others, named or unnamed,acted conjointly along with one of the accused charged. But such a conclusionis really based on evidence. The observations of this Court really apply to acase covered by the third illustration given by us.
11. But the present case falls outside the said three illustrations. TheHigh Court gave conflicting findings. While it acquitted accused 1, 3 and 4under s. 302, read with s. 34 of the Indian Penal Code, it convicted accused 2under s. 302, read with s. 34, of the said Code, for having committed theoffence jointly with the acquitted persons. That is a legally impossibleposition. When accused were acquitted either on the ground that the evidencewas not acceptable or by giving benefit of doubt to them, the result in lawwould be the same : it would mean that they did not take part in the offence.The effect of the acquittal of accused 1, 3 and 4 is that they did notconjointly act with accused 2 in committing the murder. If they did not actconjointly with accused 2, accused 2 could not have acted conjointly with them.Realizing this mutually destructive findings of the High Court, learned counselfor the State attempted to sustain the findings of the High Court by persuadingus to hold that if the said finding was read in the context of the wholejudgment, it would be clear that the learned Judges meant to hold that personsother than the acquitted accused conjointly acted with the convicted accused.We have gone through the entire judgment carefully with the learned counsel.But the observations of the learned Judges as regards the 'otherparticipants' in the crime must in the context refer only to the 'oneor other of the said three acquitted accused participated in the offencecommitted by accused 2.' There is not a single observation in the judgmentto indicate that persons other than the said accused participated in the offence,nor is there any evidence in that regard. We, therefore, hold that the judgmentof the High Court cannot stand. We are satisfied that on the findings arrivedat by the High Court, the conviction of accused 2 is clearly wrong.
12. In the result, we allow the appeal, set aside the conviction of theappellant and direct him to be set at liberty.
13. Appeal allowed.