BHARWAD MEPA DANA & ANOTHER versus STATE OF BOMBAY

Governme!lt Road Transport Department which alone

Mahaboob 'sh,,iff has contested these petitions.

:V. · In Petition No. 76 of 1959. Transpo,tAuthority Mysore Slate-· - - I n accor a1~c~ WI 'th ... t op1n1on o · · th maJor1 · "t y, we _ allow the petit10n and quash that part of the order Kapur J. complained against which ,specified the renewal of the permits· upto September 30, 1959, and direct the Authorities to comply with the requirements of the law as laid down in s. 58(l)(a) read with s. 58(2) in the order of renewal made by them in favour of the peti-tioners on April 30, 1959.

• The petitioners will get their costs; except hearing costs as the hearing was common with Petition No. 75 of 1959, from the l\Iysore Government Road Transport Department which alone has opposed-the petition.

BHAR,VAD MEPA DANA & ANOTHER

z959 v.

N ovembeT IP STATE OF BOl\IBAY

(S. K. DAS, A. K. SARKAR and l\I. HrnAYATULLAH, JJ.)

Criminal Trial-Murder-Unlawf"l assembly-Commo;• object "'-Acquittal of some, conviction of less than five-Legality of-Common intention-No proof who gave fatal blows-Effect of-Indian Penal Code, z86o (XLV of z/!60), ss. 34 and z49.

T\velve named persons. including ·the t\vo appellants, \vere charged with having forraed an unlawful as,embly with the common object of committing the murder of three persons. The Sessions Judge acquitted seven of the accused but convic,ed ' five· under s. 302 read with 149 and s. 302 read with 34 of the Penal Code. He sentenced the appellants to death and the other three to imprisonment for life. On appeal, the High Court acquitted one of the other three convicted persons but main-tained the conviction and sentences of the appellants and the two others. The High Court held that there were te"n to thirteen persons in the unlawful assembly though the identity of all the · persons except four had not been established, that all these . persons had the common object and the common intention of killing the victims and that the killing was done in prosecution of the common object of the unlawful assembly and in further-ance of the common intention of all. The appellants contended that they having been charged with sharing the common object and common intention with certain named. persons, it was not

S.C.R. SUPREME COURT REPORTS

open to the High Court to hold that they shared the common z959 object or the common intention with certain other unspecified persons or with some of the persons who had been acquitted, and Bharwad that in the absence of any finding that the appellants gave the Mepa Dana fatal blows they could not be held constructively liable for the v. murders either under s. 149 ors. 34, Penal: Code, for blows given State of Bombay by some unknown persons.

Held, that the appellants had been rightly convicted, Even though the number of convicted persons was less than five the High Court could still apply s. 149 in convicting the four persons. There was nothing in law which prevented the High Court from finding that the unlawful assembly consisted of the four convicted persons and some unidentified persons, who together numliered more than five. In doing so the High Court did not make out new unlawful assembly different from that charged; the assem-bly was the same assembly but what had happened was that the identity of all the members had not been clearly established.

Kapildeo Singh v. The King, [1950) F.C.R. 834, Dalip Singh v. State of Punjab, [1954] S.C.R. 145 and Nar Singh v. State of Uttar Pradesh, A.LR. 1954 S.C. 457, applied.

There was no difficulty in the application of s 34, Penal Code as the number of convicted persons was four and" there was· clear finding that they shared the common intention with some others whose identity was not established. Even if it was not known which particular person or persons gave the fatal blows, once it was found that the .murders were committed in further-ance of the common intention of all, each one of such persons was liable for the murders as though they had been committed by him alone. The section was intended to meet case where members of party acted m furtherance of the common inten-tion of all but it was difficult to prove exactly the part played by each of them. ·

Wasim Khan v. The State of Uttar Pradesh, [1956) S.C.R. 191, referred to.

Prabhu Babaji Navle v. The State of Bombay, A.LR. 1956 S.C. 51, distinguished.

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 72 of 1959.

Appeal by special leave from· the judgment and order dated the 2nd April, 1959, of the Bombay High Court at Rajkot, in Confirmation Case No. 2of·1959 and CrL Appeal No. 32 of 1959, arising out of the judgment and order dated February 18, 1959, of the Court of the Sessioqs Judge of Madhya Saurashtra, at Rajkot in Sessions Case No. 18 of 1958.

Bha,-wad Mepa Dana v. Stal• of Bombay

S. K, Das],

Jai Gopal Sethi, R. L. Kohli and K. L. Hathi, for the appellants.

H. J. Umrigar, D. Gupta for R. H. Dhebar, for the respondent.

1959. November 10. The Judgment of the Court was delivered by

S. K. DAS J.-This is an appeal by special leave.

The two appellants are Mepa Dana and Vashram Dana. The learned Sessions Judge of Rajkot tried them along with ten other persons for various offen-ces under the Indian Penal Code, including the offence of tnurder punishable under section 302 read with ss. 149 and 34 of the Indian Penal Code. Of the twelve persons whom he tried, 'the learned Sessions Judge acquitted seven. He convicted five of the aecused persons. The two appellants were sentenced to death, having been found guilty of the offence under section 302 read with s. 149, as also s. 302 read with s. 34, Indian Penal Code ; the other three convicted persons were sentenced to imprisonment for life. No separate sentences were passed for the minor offences alleged to have been committed by them.

All the convicted persons preferred an appeal to the High Court of Bombay. There was also reference by the Sessions Judge under s. 374, Code 6f Criminal Procedure, for confirmation of the sentence of death passed on the two appellants. The appeal and the reference were heard together and by its judgment pronounced on April 2, 1959, the High Court affirmed the conviction of four of the convicted persons, namely, the two appellants and two other convicted persons who were accused nos. 1 and ll in the trial court. The High Court allowed the appeal of accused no. 8 and set aside the conviction and sentence passed against him. It is worthy of note here ·that as result of the judgment pronounced by the High Court, the number of convicted persons came down to four only. We are emphasising this circumstance at this stage, because one of the argu-ments adva,nced on behalf of the appellants with

S.C.R. SUPREME COURT REPORTS

regard to. their condctionR for the offence punisha.ble under s. 302 read with s. 149 centres round this fact. We had earlier stated that the number of persons whom ·the learned Sessions Judge tried was twelve only. However, the prosecution case which we F<hall presently s1a1c in little greater detail wai:: that thne were altogether thirteen accused persons who corn:;ti-tuted the unlawful assembly and committed the offen-ces iµ question in prosecution of the common object of the assembly or in furtherance of the common intention of all. One of them, however, was juvenile ·and was tried by Juvenile Court under the Sau-rashtra Children Act, 1956. That is why the number of· accused persons before the learned Sessions Judge was twelve only. The ca!je record before us does not disclose the result of the trial in the Juvenile Court, though it has been stated on behalf of the appellants that that trial ended in an acquittal.

I959 Bharwad Mepa Dana v. State of Bombay S, K. Das J.

His necessary now to state what the prosecution case against the twelve accused persons was. There is village called Nani Kundal within police station Babra in the district of Madhya Saurashtra. In that· village lived one Shavshi, who had four sons called Kurji, Harji, Mitha, and Virji. One Dana Bharwad, described as accused no. I in the trial court, also lived in the same village. He had three sons called Amra, Mepa and Vashram. We have already stated that Mepa and V ashram are the two appellants before us. In the beginning of the year 1958 Amra was murdered and Harji and Mitha were tried for that murder l;>y the learned Sessions Judge of Rajkot. He, however, acquitted them on May 14, 1958. This cansed dis-satisfaction to Dana and his two sons Mepa and Vashram. On July 14, 1958, Harji, Mitha, and Virji went to place west of the village where they had cluster of huts. This place was north of another cluster of huts belonging to Dana. When the afore-said three brothers were engaged in some agricul-tural operations, they were, attackrd by mob of persons led by the two appellants who were armed with axes. Harji was pounced upon and feired ,by blows. He managed to get up and ran. towards tfie

Bharwad Mepa Dana v. State of Bombay S. /{.Das].

176 SUPREME COUR1' REPORTS [1960(2)]

village. Simultaneously, Mitha and Virji also ran more or less in the same direction. The three bro-thers were, however, pursued. Kurji, the fourth brother, and other relatives of Shavshi ran towards the place of occurrence. Kurji was the first to arrive and the prosecution case was that Kurji was.struck down by the two appellants and other members of the unlawful assembly. He died then and there. Harji was then assaulted.for the second time and he also fell down and died then and there. Lastly, Mitha was surrounded and assaulted. He also fell down and died there.

The mother of the four brothers, Kurji, Harji, Mitha and Virji, as soon as she came to know of the death of three of her sons, arrived at the place of occurrence. She then went to the shop of one Kalidas, leading resident of the village. There she met one Arjan who was village chowkidar. Arjan was informed of what had happened and he went to village Barwala, where police out-post was situated. He informed one Anantrai who was in-charge of that out-post. Anant-rai prepared an occurence report which he sent to the officer-in-charge of Babra Police Station. This was the first information of the case. Babra is situate at distance of about thirteen or fourteen miles from village Nani Kunda!, an·d the Sub-Inspector of Police arrived at the village at about 10-45 p.m. Thereafter, an investigation. was held, and the thirteen accused persons were sent up for trial.Substantially, the defence of the appellants was that they had been falsely implicated out of enemity and had nothing to do with the murder of the three brothers, Kurji, Harji and Mitha. The ca.se of Dana, accused No. l, was that on the day in question his son Mepa was pursued and attacked by Harji, Mitha and Kurji. Thereupon, Dana went there to save his son Mepa and received an injury on his left hand. He then ran away from the scene of occurrence. He disclaimed any knowledge of the attack on Kurji, Harji and Mitha.

'.fhe prosecution examined ten eye-witnesses. Of these seven were relatives of Shavshi and three,

S.C.R. SUPREME COURT REPORTS

namely, Nagji, Bhura and Dada, were independent persons. The learned Sessions Judge accepted sub-stantially the evidence of the ten eye-witnesses, but decided not to act on the testimony of the relatives of Shavshi unless there. was other independent corrobor-ative evidence or circumstance. Proceeding on that basis, the learned Sessions Judge found that the three independent witnesses Nagji, Bhura and Dada, corro-borated the evidence of the relatives with regard to four of the five accused persons, namely, the two appellants and accused nos. 1 and IL As against accused no. 8, the learned Sessions Judge relied upon the evidence relating to the discovery of an axe, which was stained with human blood, as corroborative circumstance. In the result he convicted the two appellants and accused nos. 1, 8, and 11.

I959 Bharwad Mepa Dana v. State of Bombay S. K. Das].

Tb.e lligh Court was not satisfied with the evidence against accused no. 8. As to the common object or common intention of the persons who constituted the unlawful assembly, it said:

"From the prosecution evidence, there is no doubt whatsoever that more than five persons were operat-ing at the scene of offence, though the identity of all the persons has not been established except the accused nos. 1;2, 3 and 11. There is no doubt on the prosecution evidence that more than five persons, i.e., as many as ten to thirteen persons took part in this offence. Therefore, there is no doubt ·that these persons had formed themselves into an unlawful assembly. From the prosecution evidence, it is clear that the common object of these persons was to commit murders· and t,hat these persons entertained common intention to murder the victims. There is also evidence to show that all these persons carried heavy axes. Therefore, there is no doubt that the · -offences under sections 147, 148, 302/149 and 302/34 of the Indian Penal Code had been committed and that the accused nQs. 1, 2, 3 and 11 are liable to be convicted for these offences."

We proceed now to state the arguments which have been advanced before us ·on behalf of the appellants. The main argument is that the conviction of the

I959 appellants for the offence of murder, with the aid of either s. 149 or s. 34, Indian Penal Code, is bad in law Bharwad and cannot be sustained. Learned counsel for the Mt!pa Dana v. appellants has submitted that his clients are liable to State of Bombay be convicted and punished for the individual acts of assault which are proved against them; but in the s. K. Das J. circumstances of this case, they cannot be convicted of the offence of murder. This argument learned counsel had developed in two different ways.He has pointed out that the prosecution put up definite case that thirteen named persons formed an unlawful assembly, the common object of which was to kill the three brothers earlier named ; twelve of them were tried by the learned Sessions Judge who acquitted seven and the High Court acquitted one more. This brought the number to four, but the High Court found that there were more than five persons, that is as many as ten to thirteen persons who took part in the offence. This finding, so learned counsel has submitted, amounts to this ; the four convicted persons formed an unlawful assembly, with the necessary common object, either with some of the acquitted persons or with certain unspecified persons, who :were never put on trial on the same indictment and about whom no indication was given by the prose-cution either in the charge or in the evidence led. His contention is that in view of the finding of the High Court which resulted in the number of convicted persons falling below the required number of five, it was not open to the High Court to make out case of new unlawful assembly consisting of the four convict-ed persons and certain nnspecified persons; nor could any of the acquitted persons be held, in spite of tlie acquittal, to be members of an unlawful assembly, for · their acquittal is good for all purposes and the legal effect of the acquittal is tbat they were not members of a.ny unlawful assembly. Thus, learned counsel has contended that the conviction Qf the appellants for the offence of murder with the aid of s. 149, Indian Penal Code, is bad in law. This is the first of the two ways in which he has developed his argument.

S.C.R. SUPREME COURT REPORTS

His' second argument wider in scope and embraces both ss. 149 and 34, Indian Penal Code, and it is this. He has pointed out that though the finding is that the two appellants assaulted Harji and Kurji with their axes, there is no finding as to who gave the fatal blows to these brothers. Kurji had as many as four ante mortem injuries, three on the neck and head and one on the arm. His death was due to· depressed frac-ture of the right temporal bone and fissured fracture of the parietal and occipital . bones. Harji had has many as thirteen ante mortem injuries including fracture of the skull. So far as Mitha was concerned, he had sustained fracture of the frontal bone of the left side of his head, crushed fracture of the nose and socket of the left eye, and fracture of the maxillar bones on both sides; in other words, Mitha's skull was practically smashed in. The contention of the learned counsel is thn.t in the absence of any find-. ing that the appellants or the convicted persons alone caused the aforesaid fractures by the blows given by . them, the appellants cannot be held constructively liable, either under s. 149 or s. 34, Indian Penal Code, for blows given by some unknown person when the . prosecution made no attempt to allege or prove any such case. It is argued that even assuming that the convicted persons, four in number, had the necessary common intention of killing the three brothers, none of them would be liable under s. 34 Indian Penal Code, for the acts of an unknown person or persons who might have given the fatal blows unless the prosecution alleged and proved that thli criminal act was done in furtherance of the common intention of the convicted persons and those · others whose identity was not _known; and where thirteen named persons are said to have committed murder in furtherance of the com-mon intention 9f all, it is not open to the prosecution to say, on acquittal of nin~ of those persons, that the remaining four committed the murder merely on the finding that they had common intention but without any proof whatsoever that they or any of them gave the fatal blows. ·

r959 Bharwad Mepa Dana v. State of Bombay S.KDas].

I959 Bharwad ;'fepa Dana v. Stale of Bombay .(,,. K, Das].

The two arguments overlap to some extent, though the first is applicable specifically in respect of the charge under s. 149, Indian Penal Code, ana the second to both ss. 149 and 34, Indian Penal Code. We shall presently consider these arguments. But before we do so, it is necessary to state that much confusion could have been avoided in this case if the two charges-one under s. 149 and the other under s. 34-were not mixed up : the difference between the two sections has been pointed out in several previous deci-sions of this Court, and though we consider it unneces-sary to reiterate that difference, we must state that the difference should have been kept in mind and the two charges shoulrl not have been rolled up into one as was done in the present case. We are satisfied, however, that no prejudice was caused and the appel-lants have had fair trial. To go back to the arguments urged on behalf of the appellants ; it is necessary, first, to understand clearly what the finding of the final Court of fact is. We have earlier quoted that finding in the very words in which the learned Judges of the High Court expressed it. That finding stated-( L) there was no doubt that more than five persons constituted. the unlawful assembly, though the identity of all the persons except those four who were convicted was not established ; (2) that the total number of persons constituting the unlawful assembly was ten to thirteen; (3) that all the ten to thirteen persons had the common object and common intention of killing Kurji, Harji and Mitha; and lastly (4) that the kil1ing was done in prosecution of the common object of the unlawful assembly and in furtherance of the common intention of all, and the appellants took major part in tJ\.e assault on two of the brothers, Kurji and Harji. The question that arises now is this : in view of these findings of the High Court, can it be said thatthe High Court wrongly applied s. 149, because the number of convicted persons was only four? We think that the answer must be in the negative. We may say at once that the High Court does not find that the unlawful assembly con-sisted of the four ccmvicted persons and some of the

- S.C.lt. SUPREME COURT REPORTS

acquitted persons. That clearly is not the finding of the High Court, because it says that " the identity of all the persons has not been established except that ·of accused nos. 1, 2, 3 and 11." The finding of the High Court really mean~ that the four convicted per-sons and some other persons whose identity was not established, totalling ten to thirteen in number, consti-tuted the unlawful assembly. Therefore, it is unneces-sary in the present case to embark on 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 the acquittal was good for all purpo~es 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 s. 149, Indian Penal Code .•

Bharwad Mepa Dana v. State of Bombay S.K,Dasj.

That does not, however, conclude the matter. Nothing in law prevented the High Court from finding . that the unlawful assembly consisted of the four con-victed persons and some unidentified persons, who together numbered more than five. We have advisedly said, "Nothing in law etc"; for, whether such finding can be given or not must depend on the facts of each case and on . the evidence led. It is really question of fact to be determined in each case on the evidence given therein. Learned counsel for the appellants has argued before us, as though it is matter of law, that it was not open to the High Court to come to the finding to which it came, because the prosecuti0n case was that thirteen named persons constituted the unlawful assembly. We are unable to accept this argument as correct. We do not think that there was any such legal bar as is suggest,ed by learned counsel, though there may be cases where on the facts proved it wiU be impossible to reach finding that the convicted persons, less than five in number, constituted an unlawful assembly with certain other unspecified persons not mentioned' in the charge. That consideration apart, any mere error, omission or irregularity in the charge will not invalidate the finding in this case as matter of law. So far as the finding can be said to have travelled beyond the letters of the

Bharwad 1l!epa Dann v. State of Bombay S. K. Da' ].

charge, the appellants have not proved any prejudice, and in the absence of prejudice no complaint can now be made of any defect in the charge.

Learned counsel has then submitted that the finding of the High Court makes- out :t case of new unlawful assembly which is different from that suggested by the prosecution case. vVe do not think that that view is correct either. The assembly is the same assembly, but what has has happened is that the identity of all the members of the unlawful assembly has not been clearly established though the number has been found to be more than five. We do not think that it is unusual for witnesses to make mistakes of identity when large number of persons are concerned in committing crime; in any event it is question of fact to be decided in each case a.nd is not question of law.

Much reliance has been placed by learned counsel for the appellants on the following observations in Arcnbold's Criminal Pleading, Evidence and Practice (Thirty-fourth edition, pp. 200-201 ).

"'Vhere several prisoners are included in the same indictment, the jury may find one guilty and acquit the others, and v·ice versa. ·But if several are indicted for riot, and the jury acquit all but two, they must 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 upon that indictment."

S-imilar observations occur in Hawkins's Pleas of the

Crown (2 Hawk. c. 47, s. 8)

"That on an indictment for riot against three or more, if verdict acquit all but two, and find them guilty; or on an indictment for conspiracy, if the verdict acquit an· but one, and find him guilty, it is repugnant and void as to the two found guilty in the first case, and as to the one found guilty in the second, unless the indictment charge them with having made such riot or conspiracy .simul cum aliis juratoribus ignotis; for otherwise it appears that the defendants are found guilty of an offence

whereof it is impossible that they should be guilty,; for there can be no riot where there are no more persons than two, nor can there be conspiracy where t·here is no partner. Yet it seems agreed, that if twenty' persons are indicted for riot or con-spiracy, and any three found guilty of the riot, or any two of the conspiracy, the verdict is good:"

We do not think that these observations help the appellants in the present case. They relate to the effect of verdict of the jury at common law, which may be either (a) general, or (b) partial or (c) special. In special verdict, the facts of the case are found by the jury, the legal inference to be derived from them being referred to the court. If, therefore, the jury find only one man guilty of conspiracy and two guilty of riot, they are really finding the defendants (to use the phraseology of Hawkins) "guilty of an offence whereof it is impossible that they should be guilty; for there can be no riot where there are no more persons than two, nor qan there be consp_iracy where there is no partner." Obviously, the observat~ons refer to those cases where the verdict of the jury does not and cannot imply that there were more than one conspirator, or more· than two persons in riot. This is made clear by the further statement that "if twenty persons are indicted for riot or conspiracy, and any three found guilty of the riot; or any two of the conspiracy, the verdict is good." The legal position is clearly and suc9inctly put in Harris's Criminal Law (Nineteenth edition, p. 474.)

" When several persons are joined in one indict-ment the jury. may convict some and acquit others. In s_ome cases, however, the acquittal of one may render the conviction of the other or others impos-sible; in conspiracy, for example, at least two of the prisoners must be convicted, and in riot at least three, unless those convicted are charged with having been engaged in the conspiracy or riot with some other person or persons not tried upon that indictment." ·

In Topan Das v. The State of Bombay ([1]), this Court proceeded on the same principle, viz., that according to

(I) [195~]: S.C.R. 881.

Bharwad Mepa Dana v. State oj Bombay S. /(.Das].

Bkarwad Mepa Dana v. Stale of Bombay S.K. v., j.

184 SUPR.EME COUR.T R.EP-OR.TS (1960(2)]

the definition of criminal conspiracy in s. 120-A, Indian Penal Code, two or more persons must be partners to such an agreement and one person alone can never be held guilty of criminal conspiracy for the simple reason that he cannot conspire with himself. That was case in which four named individuals were charged with having committed criminal conspiracy, but three were acquitted of the charge. The distinction between that case and the case under our consider-ation lies in this : in Topan Das's case it was not possible to find, after the acquittal of three persons out of the four charged, that there was any partner to the conspiracy whereas in the case before us the finding is ·that there were ten to thirteen persons who constituted the unlawful assembly with the necessary common object but the identity of four only has been established.The point under discussion arose in the decisions of the Allahabad High Court, viz., Harchanda v. Rex ([1]), and Gulab v. State ('), the latter over-riding the earlier decision. The decision in Gulab's case proceeded, however, on the footing that it was open to the appellate court to find that some of the acquitted persons had been wrongly acquitted, although it could not interfere with such acquittal in the absence of an appeal by the State Government-an aspect regarding which it is not necessary to say anything in this case. There are two other decisions, one of the ]federal Court and the other of this Court. In Kapildeo Singh v. The King ([3]), the prosecution case was that 60 or 70 men constituted the unlawful assembly, but the appel-lant in that case was charged with thirteen others with having committed certain offences in further-ance of the common object of the unlawful assembly. The appellant was found guilty, but the thirteen others who were charged along with the appellant were acquitted as they were not properly identified. One of the contentions raised in the Federal Court was that in all fourteen persons having been charged with rioting and thirteen of them having been acquitted, (1) (1951) I.L.R. 2 All. 62. (2) (1952) I.L.R. 2 All. 726. (3) (1950) F,C.R. 834.

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it could not be held that there was any unlawful assembly of five or more persons who~e common object was to commit an offence. With regard to this contention, it was observed. at pp. 837-838:

Bharwad Mepa Dana v. State of Bombay S. 1(. Das].

"The essential question in case under s. 147 is whether there was an unlawful assembly as defined in s. l41, I. P. C., of five or more than five persons. The identity of the persons comprising -the assem-bly is 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, s. 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 assembl,v of five or more persons, known or unknown, identified or unidentified. In the present case, there is such finding and that concludes the matter."

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 qounsel for the appellants on the basis that in Kapil-deo's case(1), the prosecution allegation was that there were 60 or 70 men in the unla~ful assembly, makes any difference in the legal position. The same view was expressed again by this Court in Dalip Singh v. State of Punjab(~) : ,

"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 .. finding that three of them 'may or may not have been there' betrays uncertainty on this vital point and it con-sequently 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, conviction of the rest· with the aid of section 149 would be good. But if (1) (1950] F.C.R. 834. (2) [1954] S.C.R. 145, 150. 24

that. is the conclusion it behoves court, particu· larly in murder case where sentences of transport-ation in no less than no less than than four cases have been been enhanc-ed to death, to say so death, to say so to say so say so so with unerring certainty." unerring certainty." certainty."

Bharwad ,'lf epa Dana ation in no less than no less than than four cases have been been enhanc-v. ed to death, to say so death, to say so to say so say so so with unerring certainty." unerring certainty." certainty." State of Bombay The same view was reiterated in Nar Singh v. Stale of S. /{. Das]. Uttar Pradesh ([1]). We have stated earlier what the finding in the present case is : it is clear finding-a finding with certainty-that the number of persons who constituted the unlawful assembly was more than five, though the identity of four only has been estab-lished; and the killing was done in prosecution of the common object of the entire unlawful assembly. Therdore, we see no serious difficulty in applying s. 149, Indian Penal Code, in the present case.

As to the anplieation of s. 34 Indian Penal Code, we consider that the legal position does not admit of 8<ny doubt or difficulty. Four perRons have been convicted of murder on the finding that all of them and some others had the common intent inn of killing three brothers; the appellants took part in the assault in furthemnce of the common intention, and it is not disputed that the common intention was achif·veaby murdering the three brothers, Kurji, Harji and Mitha. The number of convicted persons is more than one, and it does not fall below the required number. What then is the difficulty in applying s. 34, Indian Penal Code ? Learned counsel says :. " We do not know who gave the fatal blows". We accept the position that we do not know which particular person or persons gave t.he fatal blows; but once it is found that criminal act was done in furtherance of the common intention of all, each of such persons is liable for the criminal act as if it were done by him alone. The section is intended to meet case in which it may be difficult to distinguish betw<>en the acts of individual members 0£ party who act in furtherance of the common intention of all or to prove exactly what part was t"'ken by each of them. The principle which the s"ction embodies is participation in some action with the common intention of committing crime; once such participation is established, s. 34 is at once (II A.LR {()<:I s.c. 457, 1159.

S.C.R: SUPREME COURT REPORTS

attracted. In the circumstances, we fail to see what difficulty there is in applying s. 34, Indian Penal Code, in the present case. In the course of his arguments learned counsel has suggesteg that some of the acquit-ted persons might have given the fatal blows and as they have been acquitted, the appellants cannot be constructively liable for their acts. We do not think· that this correct way of looking at the matter. We are proceeding in' this case on the basis that the acquittal is good for all purposes, and we cannot bring in the acquitted persons for an argument that they or any of them gave the fatal blows.

Bharwad Mepa Dana v. State of Bombay S. K. Das].

It is necessary to refer now to two decisions of this Court with regard to the application of s. 34, Indian Penal Code. Learned counsel for the respondent has relied on Wasim Khan v. The State of Uttar Pradesh (1). In that case the High Court found that the appellant along with two others committed the offences of robbery and murder; but the two co-accused were acquitted. It was observed that on the finding of the High Court the appellant could be convicted by the !l'PPlication of s. 34, even though the two co.accused of the appellant were acquitted. That was case in whic)l the number came down to one by the acquittal of the two co-accused. The present case is much stronger case in the matter of the application of s. 34, because the number of convicted persons who parti-cipated in the criminal act in furtherance.of common intentio!} of all is four. In Prabhu Babaji Navle v. The State of Bombay (2) the appellant along with four others was charged under s. 302 read with s. 34, Indian Penal Code; four others were acquitted. The question was if the appellant could be convicted under s. 34 after the acquittal of four others. Here again the number fell to one, that is, below the required number. It was observed:

" If these four· persons are all acquitted, the element of sharing common intention with them disappears; and unless it can be proved that he shared common intention with actual murderer or (1) [1956] S.C.R. 291. (2) A.LR. 1956 S.C. 51,

(2) A.LR. 1956 S.C. 51,

Bharwad Mepa Dana v. State of Bombay S.K. Das],

murderers, he cannot be convicted with the aid of

Of course he could have been charged in the alternative for having shared common intention with another or others unknown. But even then, the common intention would have to be proved either by direct evidence or by legitimate iqference. It is impossible to reach such conclusion on the evidence in this case once the co-accused are elimin-ated because the whole gravamen of the charge and of the evidence is that the appellant shared the common intention with those other four and not with others who are unknown."

This decision can be distinguished on two grounds' (1) the number fell below the required number and (2) it was not possible to reach conclusion in that case that the appellant shared the common intention with another or others unknown. In onr case the num her of convicted persons is four and each of them had the necessary common intention ; secondly, there is clear finding that they shared the common intent.ion with some others whose identit.v was not established. The decision in Prablm Babaji N avle (') does not, therefore, stand in our way.

Lastly, there is the question of sentence. Learned counsel for the appellants has submitted that the lesser sentence should be imposed, and he has given three reasons in support of his submisRion: (1) that Amra, brother of the appellants, was murdered earlier in the year; (2) that the father of the appellants was also convicted but was not given capital punishme!lt, though he must have influenced the appellants; and (3) there is no finding that the appellants caused the fatal injuries. We have examined the evidence and it shows clearly enough that the appellants played leading part and, so.far as Kurji and Harji were con-cerned, took major part in assaulting them with heavy axes. The High Court also carefully considered the sentence imposed on the appellants and ca.me to the conclusion that having regard to the enormity of the crime, viz., three premeditated and cold-blooded

(1) A.I.R. 1956 S.C. 51

S.C.R. SUPREME COURT REPORTS 189

murders and the part played by the appellants, it would not be justified in imposing the lesser sentence. We see no good reasons for differing from the High Court and interfering with the sentence.

For the reasons given above, the appeal fails and is dismissed.

Appeal dismissed.

THE OFFICIAL LIQUIDATORS, U. P. UNION BANK •LTD.

SHRI RAMESHWAR NATH AGGARWAL

(P. B. GAJENDRAGADKAR, K. SuBBA RAo and

J. 0. SHAH, JJ.)

Company Law-Winding up of Bank-Landlord's claim for rent of bank premises after order of winding up:_Official Liquid-ators calling upon Landlord to take possession of the premises and not using the same for the purposes of winding up-Landlord refusing to take possession-Whether Official Liquidators liable-Indian Companies Act, I9I3 (VII of i9I3), ss. I93· 230, 230(3)-Company Rules framed by the Allahabad High Court r. 97 (Proviso).

The U. P. Union Bank was in occupation of building belonging to the respondent as tenant. After the passing of the winding up order of the bank the Official Liquidators removed the offices of the bank from the premises and called upon the respondent landlord to take possession thereof. The respondent refu5ed to do so as part of the premises was occupied by some trespassers. Thereafter the Official Liquidators did not do· any business in the building in connection witn the winding up of the bank. The respondent claimed the entire rent from the date of the winding up order up to the date on which the Official Liquidators wouid give him vacant. possession of the premises. The High Court held• that in view of the proviso to r. 97 of. the Rules framed by the High Court under the Companies Act the respondent was entitled to recover the entire rent claimed by him and not pro-rata with the 9ther creditors of the bank.

The proviso to r. 97 of the Company Rules runs thus:

"Provided that where the official liquidator remains in occu1·ation of .premises demised to company which is being wound up, nothing herein contained shall prejudice or affect the rights of the landlord of such premises to claim payment

Bharwad Mepa Dana v. State of Bombay S.K. Das].

November IO