1. This is an appeal by special leave from a judgment of the High Court ofPatna altering the conviction of the appellants under s. 304, Part II read withs. 149 of the Indian Penal Code into convictions under s. 326 read with s. 149,I.P.C. but maintaining the sentences and affirming the convictions under s. 147and s. 426, I.P.C. as well as the sentences awarded ink respect of thoseoffences.
2. The prosecution case was that there was a dispute between Ram Bilas Singhof Shahpore and his two sons Ram Naresh Singh and Dinesh Singh on the one hand(appellants before us) and Deva Singh (P.W. 2) and his brothers on the otherwith respect to a Dochara in a village Dihara. On April 22, 1957, at about 9.00a.m. while Deva Singh, along with his brother Laldeo Singh, the deceased andtwo other persons Dhunmun Singh (P.W. 4) and Dasain Hajam were sitting in theDochara the appellant No. 1 Ram Bilas Singh arrived there in a truck with a mobof 40 to 50 persons which included the other two appellants before us, besidesfour other persons who were acquitted by the trial court. Ram Bilas Singh issaid to have fired from the gun which he was carrying which hit Laldeo Singh onthe chest as a result of which he fell down, but got up later. Thereupon RamdeoSingh (acquitted by the trail court) fired from his gun and the shot hit LaldeoSingh on the chest and he fell down again. After that, Ram Bilas Singh Gumastaof Dihara (acquitted by the trial court) fired a second shot from his gunhitting Laldeo Singh on the abdomen and killing him instantaneously. Theappellant Ram Bilas Singh is further said to have fired two shots at Deva Singhhitting him on his right thigh. Appellants Ram Naresh Singh and Dinesh Singhare said to have assaulted Deva Singh with lathis as a result of which he felldown and thereafter the mob proceeded to dismantle the Dochara by demolishingits mud pillars, as a result of which its thatched roof fell down. Havingachieved their object, the mob is said to have left the place, taking awayalong with them a palang, a bamboo cot, two quilts, one lantern and onegaransa.
3. The incident attracted number of villagers to the spot including JagdishSingh, Bhagwat Singh (since dead) and Ajodhya Singh. After report was lodged ofthe incident, the police arrived on the spot, held the panchnama (inquest) onthe body of Lal Deo Singh and followed the usual procedure. A search was madefor the seven accused persons, including the appellants, but it took some timeto find them out and arrest them. Eventually, they were placed before amagistrate who committed them for trial for offences under s. 148, s. 302 read withs. 149 and s. 426, I.P.C., the appellant Ram Bilas Singh, Ramdeo Singh and RamBilas Singh Gumasta of Dihara were specifically charged with offences under s.302, I.P.C. for having committed the murder of Laldeo Singh. Ram Bilas Singhwas further charged under s. 307 of the Indian Penal Code for attempt to committhe murder of Deva Singh while Ram Naresh Singh and Dinesh Singh (appellants 2and 3) were further charged with offences under s. 323, I.P.C. for assaultingDhunmun Singh (P.W. 4). The court of Session acquitted both Ram Bilas Singh aswell as Ramdeo Singh of the offence under s. 302, I.P.C. and also acquitted allthe seven accused persons of the offence under s. 302 read with s. 149, I.P.C.It, however, convicted the three appellants before us under s. 304, secondpart, read with s. 149 of the I.P.C. and under Sections 147 and 426, I.P.C. butacquitted the appellants 2 and 3 of the offence under s. 323, I.P.C.
4. Briefly stated, the defence of the three appellants was that theappellant Ram Bilas Singh was in possession of the dochara, that it was LaldeoSingh and Deva Singh who threatened to dismantle the dochara and, therefore,they marched there on the date of the incident at the head of a mob consistingof 15 or 20 persons carrying with them various weapons. During the incident,Laldeo Singh and Deva Singh are said to have flourished their farsis andgandasas while some other members of their party are said to have used theirlathis and spears as a result of which four persons on the side of the appellantsreceived injuries. In the meantime, in self-defence, one Ram Lakhan Singh(since deceased) fired a shot from his gun and ran away. This shot is said tohave hit Laldeo Singh and also Deva Singh. After being injured in this manner,Laldeo Singh is said to have dropped down dead and then the mob dispersed.
5. The defence of the appellants that they were in possession of the docharaand that Laldeo Singh and Deva Singh were the aggressors has been rejected byboth the courts below and Mr. Sethi who appears for the appellants has not evensought to controvert the finding on that point. His contention, however, isthat the appellants having been acquitted of the offence under s. 302 read withs. 149, I.P.C. and appellant No. 1 having been acquitted of the offences unders. 302 and s. 307, I.P.C. none of them could be convicted under s. 326 readwith s. 149, I.P.C. Learned counsel points out that the clear case of theprosecution in the charge sheet was against seven named persons i.e., the threeappellants before us, Ram Bilas Singh Gumasta of Dihara, Sudarshan Singh son ofRam Bilas Singh Gumasta, Ramdeo Singh and Sakal Singh sons of Raghoo Singh andcontends that out of these, four persons having been acquitted, the remainingthree persons could not be said to have been members of an unlawful assemblyand, therefore, they could neither be convicted under s. 147, I.P.C. nor couldthey be convicted of any other offences with the aid of s. 149, I.P.C. All thatit was competent for the court to do was to convict each of them for theirindividual acts and no more. Learned counsel further contends that withoutsetting aside the acquittal of the four alleged associates of the appellants,there could be no finding to the effect that there was an unlawful assembly ofwhich the appellants were members and were, therefore, liable for the acts ofother members thereof. Further, it was urged by learned counsel that an accusedperson cannot be held liable vicariously for the act of an acquitted personand, therefore, even assuming that the fatal injuries were caused to LaldeoSingh by one of the four acquitted persons, it was not open to the High Courtto hold any of the appellants liable for that act with the aid of s. 149,I.P.C.
6. Learned counsel relied upon a passage in the judgment of Agarwala J., inHarchanda v. Rex I.L.R. (1951) 2 All. 62 which reads thus :
'Now in a criminal case the burden of proof isalways on the prosecution. It is for the prosecution to establish theresponsibility of the accused for the crime alleged. Having regard to the factthat there is no appeal against the acquittal of the other five accused beforeus, and having regard to the fact that we cannot interfere with the finding ofthe learned Sessions Judge, so far as it concerns those accused, we cannot holdthat either Durga Das or Sukhbir was responsible for inflicting the incisedwounds : and since it was not the prosecution case that there was some unknownperson along with the accused, who was also holding a sharp-edged weapon, wecannot ascribe the infliction of the incised wounds to some such unknownperson. The result of the prosecution evidence, taken with the findings of thelearned Sessions Judge, is that the prosecution is unable to explain theinfliction of the incised wounds. In my opinion, in such a case the accusedcannot be held constructively liable for the infliction of those wounds.'
7. There is no doubt that the High Court has observed in its judgment underappeal that Laldeo Singh was killed as a result of one of the shots fired athim by Ram Bilas Singh Gumasta who was acquitted by the court of Session. Wemay quote the observations made by it in this regard. They are :
'It seems, as I shall show hereafter, the trialcourt was greatly prepossessed in favour of Ram Bilas Singh of Dihara, andtherefore it ruled out without disbelieving the evidence, the possibility ofLaldeo Singh having been killed by the third shot fired by Rambilas Singh ofDihara. It is admitted that the two Rambilas Singh and Ramdeo Singh have eachheld a licensed gun............. These guns and the empty cartridge..........which had been found by P.W. 21 at the place of occurrence were examined by theFire Arms Expert......... The trial court has explained away this very strongpiece of evidence of unimpeachable character, supporting the version of thewitnesses that Rambilas Singh of Dihara had fired one shot from his gun, on avery flimsy ground.'
8. Then the High Court observed that the evidence of the ballistic expertwas disregarded by the Court of Session on flimsy grounds. The point, however,is that the High Court has come to the conclusion that the shot which resultedin the death of Laldeo Singh was fired by an acquitted person. If the viewtaken by the Allahabad High Court is correct, then it would follow that it wasnot open to the High Court before which the acquittal of Rambilas Singh Gumastawas not challenged, to reassess the evidence with regard to him and hold thatit was he who had caused the death of Laldeo Singh.
9. We will deal with the decision of the Allahabad High Court presently, butwe must refer to certain decisions of this court to which reference was madeduring arguments.
10. In Topandas v. The State of Bombay : 1956CriLJ138 , this court hasheld that where four named individuals were charged with having committed anoffence of criminal conspiracy under s. 120-B, I.P.C. and three out of thesefour were acquitted of that charge, the fourth accused could not be held guiltyof the offence of criminal conspiracy. In support of this view, this court hasrelied upon a passage in Archbald's Criminal Pleading, Evidence and Practice(33rd edn. p. 201, paragraph 361) which reads thus :
'Where several prisoners are included in the sameindictment, the jury may find one guilty and acquit the others, and vice versa.But if several are indicated for a riot, and the jury acquit all but two, theymust 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 uponthat indictment. 2 Hawk c. 47 s. 8. And, if upon an indictment for aconspiracy, the jury acquit all the prisoners but one, they must acquit thatone also, unless it is charged in the indictment, and proved, that he conspiredwith some other person not tried upon that indictment.'
11. This court has also quoted with approval a passage from the judgment inR. v. Plummer  2 K.B. 339, which is one of the decisions on which theabove passage is founded.
12. In Bharwad Mepa Dana v. State of Bombay : 1960CriLJ424 , thiscourt had to consider the correctness of the conviction of three persons unders. 302 read with s. 149 I.P.C. when one other person who had been convicted bythe Sessions Judge of a similar offence had been acquitted by the High Court.It may be mentioned that originally twelve persons were named in the charge andit was alleged that they had formed an unlawful assembly with the common objectof murdering certain persons. Seven of them were acquitted by the SessionsJudge and only five were convicted under s. 302 read with s. 149, I.P.C. TheHigh Court, while acquitting one of the five persons, convicted by the SessionsJudge, held that there were ten to thirteen persons in the unlawful assemblythough the identity of all the persons except four had not been established,that all these persons had the common object and the common intention ofkilling the victims and that the killing was done in prosecution of the commonobject of the unlawful assembly and in furtherance of the common intention ofall. Upon these facts, this court held that the appellants before it wererightly convicted under s. 302 read with s. 149, I.P.C., and that there wasnothing in law which prevented the High Court from finding that the unlawfulassembly consisted of the four convicted persons and some unidentified persons,who, together numbered more than five. This court further observed :
'............ it is unnecessary in the present caseto embark on a discussion as to the legal effect of the acquittal of nine ofthe accused persons, except to state that we may proceed on the footing thatthe acquittal was good for all purposes and none of those nine persons can nowbe held to have participated in the crime so that the remaining four personsmay be held guilty under s. 149 Indian Penal Code.'
13. It is on the above observations that reliance had been placed by Mr.Sethi. He contends that the High Court was wrong in observing that Laldeo Singhwas killed as a result of a shot fired at him by Ram Bilas Singh Gumasta andthat he has escaped the charge of murder as he was acquitted by the SessionsJudge.
14. Then, there is the decision of this court in Kartar Singh v. State ofPunjab : 2SCR395 , where this court has held that if the trialcourt can legally find that the actual number of members in the assailantsparty was more than five, that party will in law constitute an unlawfulassembly even though ultimately three of the accused persons are convicted. Ithas further held that it is only when the number of the alleged assailants isdefinite and all of them are named and the number of persons found to havetaken part in the incident is less than five, it cannot be held that theyformed an unlawful assembly. Then this court observed :
'The acquittal of the remaining named persons mustmean that they were not in the incident. The fact that they were named,excludes the possibility of other persons to be in the appellant's party anespecially when there be no occasion to think that the witness naming all theaccused could have committed mistakes in recognising them.'
15. In support of the above conclusion, reliance was placed by this courtupon the decision of this court in Dalip Singh v. State of Punjab S.C.R. 145.
16. In Sunder Singh v. State of Punjab  Su 2 S.C.R. 654,also this court has considered the effect of the acquittal of some persons ofthe offence under s. 302 read with s. 149, I.P.C. on the conviction of theremaining persons who numbered less than five. In dealing with this matter ithas observed :
'Cases sometimes arise where persons are chargedwith being members of an unlawful assembly and other charges are framed againstthem in respect of offence committed by such an unlawful assembly. In suchcases; if the names of persons constituting the unlawful assembly arespecifically and clearly recited in the charge and it is not suggested that anyother persons known or unknown also were members of the unlawful assembly, itmay be that if one or more persons specifically charged are acquitted, that mayintroduce a serious infirmity in the charge in respect of the others againstwhom the prosecution case may be proved. It is in this class of cases, forinstance, that the principle laid down in the case of Plummer may have somerelevance. If out of the six persons charge under s. 149 of the Indian PenalCode along with other offences, two persons are acquitted, the remaining fourmay not be convicted because the essential requirement of an unlawful assemblymight be lacking.'
17. Upon the facts of the case before it, this court held that the principleset out in Plummer's case  2 K.B. 339, and which has been accepted bythis court in Topan Das's case : 1956CriLJ138 , did not apply to the casebefore it. This court then proceeded to consider the powers of the court ofappeal under s. 423(1)(a) of the Criminal Procedure Code and observed that ifin dealing with a case before it, it became necessary for the High Court todeal indirectly or incidentally with the case against the acquitted accused, itcould well do so and there is no legal bar to such a course. Upon the view weare taking it is unnecessary to express any opinion as to whether theinterpretation placed in this case upon the ambit of the powers under s. 423.Cr.P.C. is consistent with the principle in Plummer's case  2 K.B. 339.
18. Finally, there is the decision of this court in Mohan Singh v. The Stateof Punjab  Su 3 S.C.R. 848, where a similar question arose forconsideration. There, this court, after pointing out that where five or morepersons are shown to have formed an unlawful assembly, the mere fact that lessthan that number are actually tried for the offence committed by the assemblyand convicted of that offence would not necessarily render their convictionillegal, because other persons may not have been available for trial or may notbe properly identified or for some other reason. This court has observed :
'.................. In such cases, if both thecharge and the evidence are confined to the persons named in the charge and outof the persons so named two or more are acquitted leaving before the court lessthan five persons to be tried, then s. 149 cannot be invoked. Even in suchcases, it is possible that though the charge names five or more persons ascomposing an unlawful assembly, evidence may nevertheless show that theunlawful assembly consisted of some other persons as well who were notidentified and so not named. In such cases, either the trial court or even theHigh Court in appeal may be able to come to the conclusion that the acquittalof some of the persons named in the charge and tried will not necessarilydisplace the charge under s. 149 because along with the two or three personsconvicted were others who composed the unlawful assembly but who have not beenidentified and so have not been named. In such cases, the acquittal of one ormore persons named in the charge does not affect the validity of the charge s.149 because on the evidence the court of fact is able to reach the conclusionthat the persons composing the unlawful assembly nevertheless were five or morethan five.'
19. The decisions of this court quoted above thus make it clear that wherethe prosecution case as set out in the charge and as supported by the evidenceis to the effect that the alleged unlawful assembly consists of five or morenamed persons and no others, and there is no question of any participation byother persons not identified or identifiable it is not open to the court tohold that there was an unlawful assembly unless it comes to the definiteconclusion that five or more of the named persons were members thereof. Where,however, the case of the prosecution and the evidence adduce indicates that anumber in excess of five persons participated in the incident and some of themcould not be identified, it would be open to the court to convict less thanfive of the offence of being members of the unlawful assembly or convict themof the offence committed by the unlawful assembly with the aid of s. 149,I.P.C. provided it comes to the conclusion that five or more personsparticipated in the incident. Again, it is clear from these decisions that whena person has been acquitted of an offence, his acquitted will be good for allpurposes when the incident in connection with which he was implicated comes upfor consideration before the High Court in appeal by a person or persons whowere tried along with him and convicted of some offence with the aid of s. 149,I.P.C. Sunder Singh's case  Su 2 S.C.R. 654, has carved out anexception to this rule to the effect that the High Court can, under s. 423,Cr.P.C. consider incidentally the question whether the acquitted person was amember of the unlawful assembly for the purpose of determining the case of theappellants before it. As already pointed out it is not necessary in this caseto say whether such an exception can be recognised consistently with theprinciple in Plummer's case  2 K.B. 339, which has so far beenuniformly accepted by this court.
20. We have had occasion to consider recently in Krishna Govind Patil v. TheState of Maharashtra : 1SCR678 , the effect of the acquittal ofpersons who were tried along with the persons convicted of an offence under s.302 read with s. 34. One of us (Subba Rao. J.) speaking for the court, hasobserved :
'It is well settled thatcommon intention within the meaning of the section implied a pre-arranged planand the criminal act was done pursuant to the pre-arranged plan. The said planmay also develop on the spot during the course of the commission of theoffence; but the crucial circumstance is that the said plan must precede theact constituting the offence. If that be so, before a court can convict aperson under s. 302 read with s. 34 of the Indian Penal Code, it should come toa definite conclusion that the said person had a prior concert with one or moreother persons, named or unnamed, for committing the said offence. A fewillustrations will bring out the impact of s. 34 on different situations.
(1) A, B, C and 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.
As regards the third illustrationa Court is certainly entitled to come to the conclusion that one of the namedaccused is guilty of murder under s. 302, read with s. 34 of the Indian PenalCode, though the other three named accused are acquitted, if it accepts theevidence that the said accused acted in concert along with persons, named orunnamed, other than those acquitted, in the commission of the offence. In thesecond illustration, the Court can come to the same conclusion and convict oneof the named accused if it is satisfied that no prejudice has been caused tothe accused by the defect in the charge. But in the first illustration theCourt certainly can convict two or more of the named accused if it accepts theevidence that they acted conjointly in committing the offence. But what is theposition if the Court acquits 3 of the 4 accused either because it rejects theprosecution evidence or because it gives the benefit of doubt to the saidaccused Can it hold, in the absence of a charge as well as evidence, thatthough the three accused are acquitted, some other unidentified persons actedconjointly along with one of the named persons If the Court could do so, itwould be making out a new case for the prosecution : it would be decidingcontrary to the evidence adduced in the case. A Court cannot obviously make outa case for the prosecution which is not disclosed either in the charge or inregard to which there is no basis in the evidence. There must be somefoundation in the evidence that persons other than those named have taken partin the commission of the offence and if there is such a basis the case will becovered by the third illustration.'
21. What has been held in this case would apply also to a case where aperson is convicted with the aid of s. 149, Indian Penal Code instead of s. 34.Thus all the decisions of this court to which we have referred make it clearthat it is competent to a court to come to the conclusion that there was anunlawful assembly of five or more persons, even if less than that number havebeen convicted by it if (a) the charge states that apart from the personsnamed, several other unidentified persons were also members of the unlawfulassembly whose common object was to commit an unlawful act and evidence led toprove this is accepted by the court; (b) or that the first information reportand the evidence shows such to be the case even though the charge does notstate so, (c) or that though the charge and the prosecution witnesses namedonly the acquitted and the convicted accused persons there is other evidencewhich discloses the existence of named or other persons provided, in cases (b)and (c), no prejudice has resulted to the convicted person by reason of theomission to mention in the charge that the other unnamed persons had alsoparticipated in the offence.
22. Now, coming to the Allahabad High Court decision relied upon, it issufficient to say that the observations made therein which have been quotedearlier appear to be in consonance with the principle in Plummer's case 2 K.B. 339, and thus affords support to the argument of learned counsel.
23. Applying the law as set out above, we must find out whether what theHigh Court has done in this case is right. In the first place, though it wasvaguely stated by some of the witnesses examined in the case that 40 or 50persons took part in the incident including the 7 persons mentioned in thefirst information report and the charge sheet, the prosecution case throughouthas been that only seven named persons took part in the incident. Even thefirst information report of Deva Singh (P.W. 2), one of the injured persons,mentions only the seven persons who were placed for trial and no other. Thereis no suggestion therein that any other persons took part in the incident. TheCourt of Session, however, without discussing the point and without finding asto how many persons were members thereof, has come to the conclusion that therewas an unlawful assembly, the common object of which was to dismantle theDochara and assault Laldeo Singh and Deva Singh. The High Court has proceededmore or less on the assumption that there was an unlawful assembly, only somemembers of which were put up for trial, four of whom were acquitted and threeconvicted. It was necessary for the High Court to consider whether thestatements of some of the witnesses that the unlawful assembly consisted ofmany more than seven persons are true or whether they should be rejected inview of the fact that the first information report shows that only sevenpersons who were named therein, committed the offence. It had also to considerthe further question of prejudice by reason of the defect in the charge. Uponthe law as stated by this court in Mohan Singh's case  Su. 3 S.C.R.848 and in other cases it would have been competent to the High Court tolook into the entire evidence in the case, oral and documentary, and considerwhether there was an unlawful assembly or not. But it has not done so. Had theHigh Court, come to a reasoned conclusion that there was an unlawful assemblyconsisting of more than five persons, including the appellants and some otherpersons who were unidentified and convicted the appellants under s. 147 and,with the aid of s. 149, also of some other offence committed by a member ormembers of the unlawful assembly other than the acquitted persons the matterwould have stood on a different footing. But it has not done so. It is clearfrom its judgment that the High Court was not satisfied by the manner in whichthe case had been dealt with by the Court of Session; but then, it should nothave stopped there. Instead, it should have fully examined the evidence andcome to a definite conclusion as to whether there was an unlawful assembly ornot had stated its reasons for coming to such a conclusion. It should then haveascertained the particular acts committed by any member or members of that assemblyin furtherance of the common object as also the question whether any of theappellants had participated in the incident. In the light of its findings onthese matters the High Court should then have proceeded to consider whether allor any of the appellants could be held liable vicariously for all or any of theacts found to have been committed by the unlawful assembly or any member ormembers thereof other than those alleged to have been committed by personswhose acquittal has become final. It is a matter of regret that the High Courthas failed to determine questions which it was essential for it to determine.We, therefore, set aside that judgment and send back the case to the High Courtfor deciding it afresh.
24. Appeal allowed.
25. Case remanded.