1. These four appeals by special leave are directed against a common judgment of the Assam and Nagaland High Court acquitting the respondents of the offence under Section 302/149, I.P.C. and will be disposed of by a common judgment. The four respondents in these apparels were convicted of the offence under the above sections by the Additional Sessions Judge, Gauhati, in whose Court they were tried jointly along with Narendra Basumatari. The victim of the offence was on Moni Ram Kotwal.
2. Nirendra Basumatari's conviction under Section 302, I.P.C., was upheld by the High Court but there being no appeal on his behalf against that order in these appeals we are not concerned with his conviction.
3. The prosecution story may now be briefly stated. On May 20, 1962, at about 10 or 11 a.m. the deceased Moni Ram alias Dhanbahadur and some other Nepali persons were grazing their cattle in Angarkata Government Grazing Reserve which is described by P.W. 2, the informant, as Koirani Reserve. The four respondents with Nirendra Basumatari, armed with deadly weapons like bows, arrows and Lathis tried to take the grazing cattle for impounding them on the plea that these cattle has strayed into their thatched filed in the Reserve. On protest being raised by the graziers the accused persons assaulted them and Nirendra Basumatari (whose case is not before us), younger son of accused Barga Dewani (respondent in Cr. A. No. 76 of 1967), shot an arrow at Mani Ram and killed him. There were about 16 or 17 kacharis present at the place of occurrence on the side of the accused persons. Angresh (respondent in Cr. A. 77 of 1967), is alleged to have hit P.W. 2 on his head with a Lathi. Barga Dewani, it is the prosecution case, instigated the accused persons to assault the graziers. Suren and Nibaran, another son of Barga Dewani (respondents in Cr. As. Nos. 78 and 79 of 1967 respectively), were also alleged to have shot arrows at the cow-herds.
4. The Trial Court convicted them all under Section 302/149, I.P.C. and sentenced them to imprisonment for life. That Court observed that though Barga Dewani is an old man and has himself not armed, he was never-theless the leader of the accused and should have known the offence likely to be committed the unlawful assembly.
5. On five appeals having been preferred to the High Court that Court in a some what sketchy common judgment allowed the appeals of the four respondents and dismissed that of Nirendra Basumatari. The High Court took the view that there was nothing on the record to show that the common object of the assembly was to cause death or to commit murder. It further held the charge framed by the Trail Court to be defective and observed that a charge under section 147 or Section 149, I.P.C., should also have been framed against the accused persons.
6. In this Court on behalf of the State it was strongly argued that the High Court was wrong in acquitting the respondents. Reliance in support of the challenge to the view taken by the High Court was placed on the language of Section 149, I.P.C. and reference was also made to the decision of this Court in Mazaji and Another v. The State of U. P. (1959 Supp 1 SCR 940)
7. It is not doubt true that, according to the High Court, the appellants before it had on the day of the occurrence constituted an unlawful assembly armed with deadly weapons. But that Court acquitted the four appellants before it (who are respondents in this Court) on the ground that there was nothing on the record to indicate that the common object of the unlawful assembly was to commit murder of the deceased. In the opinion of the High Court the charge also disclosed the common object of the unlawful assembly to be only to commit assault. It is on this reasoning that the High Court convicted Niren alone of murder and acquitted the rest. It was argued in this Court on behalf of the appellant, the State of Assam, that the High Court did not consider that murder wads likely to be committed by some members of the unlawful assembly and this omission in view of the findings of the High court that the accused do not belong to a tribe which normally carry bows and arrows as a necessary part of their personal equipment, has resulted in erroneous acquittal of the respondents. This has caused gross failure of justice said the learned counsel. It was submitted that the Trial Court had, after taking this important factor into consideration, convicted the five accused persons and omission on the part of the High Court to keep it in view is an error which is serious enough to justify interference by this Court under Article 136.
8. Section 149, I.P.C., which prescribe vicarious or constructive criminal liability for the members of an unlawful assembly reads :
"If an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, is a member of the same assembly, is guilty of that offence."
The first part of this section speaks of the commission of an offence in prosecution of the common object of the assembly, whereas the second part takes within its fold knowledge of likelihood of the commission of that offence of prosecution of the common object. The knowledge contemplated by the second part does not mean knowledge of mere possibility of the commission of the offence. The commission of the offence must by reasonably likely. Such knowledge may be collected from the nature of the assembly, its common object, the kind of arms its members bear and their behaviour at or before the actual conflict. In the case before us the charge does not refer to any knowledge or likelihood of the offence of murder. It would no doubt have been better if in the charge knowledge of likelihood of the offence of murder in prosecution of the common object had been specifically mentioned. Such a course would have given proper notice and opportunity to the accused persons to meet the specific charge. But failure to do so does not, in our view, by itself necessarily and automatically render illegal the conviction based on the conclusion that the members of the unlawful assembly must have known that the offence of murder was likely to be committed in prosecution of the common object. Mention of Section 149 in the charge might generally be considered to be wide enough to include the charge based on the second part of this section. The matter would, however, have to be considered on the facts and circumstances of each case for determining as to whether the general nature of the charge has prejudiced the accused and, therefore, occasioned failure of justice; Section 535 and 537, Cr. P.C. This aspect was not canvassed and, therefore, not considered by the High Court. Incidentally it may be observed that even in the examination of the respondent under Section 342, Cr. P.C., they were not questioned about their knowledge on the likelihood of murder being committed in prosecution of the common object of the unlawful assembly of which they were alleged to be members. But this omission would also be one of the circumstances relevant in considering the question of prejudice to the accused. The appellant's counsel also faintly urged that the respondents were in any event guilty of grievous hurt but on this court again there was no charge and this point was not canvassed in either of the two courts below. We need, therefore, say nothing on this point.
9. The question, however, arises if the present is a fit case for interference under Article 136 of the Constitution. The appellant's learned counsel, it may be observed, wants us on special leave to set aside the order of acquittal passed by the High Court. This Article no doubt confers on this Court wide discretionary power to interfere in suitable cases. It however, does not confer a right of appeal on any party. The power being discretionary is not capable of exhaustive or precise definition and being extraordinary it has to be exercised sparingly and with caution. Broadly speaking, it is only when some glaring error leading to grave failure of justice is made out that this Court would allow this jurisdiction to be invoked. We are not satisfied that the present is such a case. These appeals accordingly fail and are dismissed. If any of the respondents is in custody pursuant to this Court's order, dated April 19, 1967, they shall be set at liberty. Those on bail would be discharged from their bail bonds.