MOHAN SINGH versus STATE OF PUNJAB

Orisso CtmmJ Lttl. v. Uni0tt of lrutia AfyarJ.

19&t Mo1d114

848 SUl'l\E.ME COlJRT l{EPORTS [Hlli2J t ' SUPP. r

be said to be reasonable and must be struck down as not falling within the protection afforded by Art. HJ (6).

In the result we hold that the notifiuat.iuns dated January I 5, 1958, and Dcocmbf)J' 2, 1960, are unconstitutional and void. The petitioners are entitled to their costs.

PetitWri allowed .

MOHAN SINGH

STATE OF PUNJAB

( B. P. Sr XHA, C. J., P. B. GAJE!WRAGADKAR, K. N. WANCHoo, N. RAJAGOl'ALA AYYANOAR and 1'. L. V};l\KATARAMA An:AR, JJ.)

Cri1nit1al Liability-Members of u11/auful assembly-M aintainahility of conviclion-Cou11nou obejct and common i?ltention-Di•tinction-A/teration of w1.viction-lndian l!enal Code 1860 (Act 46 of 1860). ss. 302, 149, 34.

The two appellants, who were tried with three others, were convicted under s. 302 read withs. 149 ands. 147 of the h1dian Penal Code. Two of these five persons tried together were acquitted. In the charge these five accused persons and none others wc:rc mentioned as forn1ing the unlawful assembly and the evidence led in the case was confined to them alone. The facts proved in the case unmistakably showed that the two appellants and the other convicted person, who inflicted the fatal blow, were actuated by the common intention of fatally assulling the deceased. It was contended in this Court that the conviction of the appellants under s. 302 read with s. 149 of the Indian Penal Code was not sustainable in law in view of the acquittal of two of the five accused persons who were alleged to have formed the unlawful assembly.

Held, that the contention must prevail and the convic-tion altered to one under '· 302 read with s. 34 of the Indian Penal Code.

Section 149 of Indian Penal Code prescribes vicarious or constructive criminal liability for members ofan unlawful

assembly which under s. 141 must consist of five or more persons. Consequently, as so.on as, in the present case, two of accused persons were acqmtted, s. 141 ceased to apply and s. 149 became inoperative.

Jn dealing with the applicability of s. 149 of the Indian Penal Code, one has to remember the several categories of cases that come up before the courts for decision thereunder.

Dalip Singh v. State ~f Pun.iab, [1954] S.C.R. 145 and Bl,iarwadMepa Dana v. Stale of Bombay, [1960] 2 S.C.R. 172, referred to. Kartar Singh v. Slate of Punjab, [1962] 2 S.C.R. 395, explained.

Likes. 149 of the Indian Penal Code, s, 34 of that Code also deals with cases of constructive liability. But the essen .. tial constituent of the vicarious crhnin.al liability under s. 34 is the existence of common intention. Being similar in so1ne ways, the two sections may in some cases overlap. Neverthe-· less, common intention on which s. 34 has its basis is different from the common object of unlawful assembly. Common intention denotes action in concert and necessarily pestuiatcs pre-arranged plan, prior meeting of minds and an element of participation in action. The acts may be different and vary in character but they must be actuated by the same common intention, common inteqtion is different from the same intention or similar intention.

Mahabub Shah v. King Emperor, ( 1945) L.R. 72 I.A. 148, referred to.

CRIMINAL APPELLATE JuRISDIOTION: Criminal Appeal No. 186 of 1960.

Appeal by special leave from the . judgment and order dated March 18, 1960, of the Punjab High Court in Crimin'11 Appeal No. 1040of1959. Raghubir Singh and R. S. Gheba, for the appe· llants.

N. S. Bindra and P. D. Menon, for the respon-dent.

1962. March 15. The Judgment of the Court was delivered by

GAJENDRAGADKAR, J.-This appeal by special leave arises out of criminal case in which the

JY6~ M t1hon Singh v. Stale of Punjab

J06Z J\foluzn Singh •• State of Punjab Uojtntlrr1.r;adkar J.

850 SUPREME COURT REi>ORTs [1962] SuPP.

appellants Mohan Singh and Jagir Singh a.long with three others wen· charged with h11.ving oommitted~ offences under s.J.:18 and s.302 read with s.149, as 1 well as s.32a, read with s.14!l of the Indian Penal Code. The three olher pernnns who w1·rc thus charged along with the two appellants werr. De.lip Singh and two Piam Singhs who were the sons of Cjagar Singh and Bahadur Singh respectively. Of the five accusecl persons, JJalip Singh was also charged under H.:l02. The case agai11Ht t.hese per-sons was tried by the II Additional Scssio11s Judge at Ferozepon" He held that the charges framed against the two Piara Singhs had not been proved beyond reasonable cl'oubt. 80, giving them the benefit of tlon ht, he acquitted them. Dalip Singh was convicted under sections ;{02 and 147 and the two appellants were t:onvieted under s.302 read with sections 149 and J.Ji. For the major offence of murder, all of them were sentenced to imprison-mont for life and for the minor offeneti under s.147, each one of them was sentenced to sii.: months' rigorous imprisonment. These sentences were orderod to run concurrently. This order of convic-tion and sentence was challenged by the said three acoused persons by preferring an appeal before the Punjab High Court. The High Court has accepted tho findings of the trial Judge and has confirmed the orders of conviction and sentence passed against them. Thcrcaft~!r, the said three accused moved this Court for sp~cial leave. The application for special leave filed by Da.lip Singh Wa8 dismissed, but that of the two appellants was grimted.. That is how the two appellants have come to this Court by special leave, and on their behalf, ~{r. Raghubir Singh has urged that the conviction of the appel-lants under s.302/149 iB unsustainable in l:iw, because as result of thP acquitt;al of th<: two Piam Singhs, the provisions of s. l 4!l were inappli-cable.

Before dealing with the merits of the conten-tion thus raised by the appellants, it is necessary to state briefly the material facts leading to the prosecution of the appellants. The incident· giving rise to the present case took place on the 9th May, 1959, at village called Malsian. The prosecution case is that on the said day, the five accused per-sons named in the charge were members of an unlawful assembly and that in prosecution of ~the common object of the said assembly, they commit-ted rioting and at that time were armed with deadly weapons. It has also alleged that in pur-suance of the said common object, Gurdip Singh, was murdered and injuries were caused to Harnam Singh. That is the bases of the charge under s.148 I.P.C. The second charge was that since Dalip Singh, one of the accused, had inflicted fatal injury on Gurdip Singh on his head in prosecution of the common object of the unlawful assembly, all the members of the assembly were guilty under s.302/149 of the Indian Penal Code for the murder of Gurdip Singh. Dalip Singh was a)so charged under s.302 without reference to s.149. That is the substance of the charge based on the allegation that Gurdip Singh had been murdered in prosecution of the common object of the unlawful assembly. For the injury caused to Harnam Singh, an additional charge was framed under s.323/149. As we have already pointed out, in the present appeal we are concerned with the conviction of the appellants under s.302 /l 49.It appears that the appellants Mohan Singh and Jagir Singh are .1;mcle and nephew respectively, the latter being the son of Mohan Singh's brother Dalip Singh who was one of the accused in the present case. There was third brother named Tara Singh who was married to Tej Kaur, the daughter of Gurdip Singh, the victim of the assault. Tara Singh was murdered by some Muslims during

' 1962 Mohan Singh v. State,,/ PunJab

Mchan Sir.1h v. .c-·1't •f Punj~b

852 SUPREME OOlmT .REPoRTs (i962] SUPP.

the communal disturbances that raged in tho Punjab in the wako of the partition of the country in 1947. As result of the said commwia.l disturbances, the parties migrated from their homes in West Pakistan to the East Punjab aud in due course, wero allotted land in villago llfalsiau. After her husband's death, Tcj Kaur began..lil!. reside with her father Gurdip Singh in.village •Gmrndyala. Since Tej Kaur had left the ,;.village of her husband; Dalip Singh and Mohan)3ingh managed to get into possession of hor share of the Land. After the holdings in village Malsian had been consolidated, Toj Kaur obtained separate holding of land as representing tho intorest of her deceased husband, Tara Singh. Thereupon, llfohan Singh aud Dalip Si.ugh entered into posses8ion of the said land after oxecuting 'patW.nama' in her favour. Haviug entered into possession of her land in this manner, they did not care to pay the share of the producu to Ttij Kaur regularly and in consequence, the amow1ts duo from them fell into arrears. Tej Kaur was thus compelled to appoint her father Gurdip t:iingh as an attorney · in order to realise the arrear8 of rent and to take steps for evicting :\lohan Si.ugh and Dalip Singh from her land. When the attorney instituted eviction proceedings, .'11ohan Singh and De.lip Singh paid up thll arrears, but even so, Tej Kaur succeeded in obtaining an order of eviction. The said order was challenged by :llohan Singh and Dalip 8ingh by preferring an appeal, but the appeal failed and the order of eviction was confir-med. That naturally led to an application L>y Gurdip Singh for obtaining the execution of the said order. On this application, warrant8 for pos-session were issued. It is because Gurdip Singh was thu6 effectively protecting the interest of his <laughter that he ultimately Ulet his death on tho 10th l\Iay, HJ59, at the hands of tho appellants and their companions.

3 S.C.R. SUPREME COURT REPORTS

Armed with the warrants of possession, Gurdip Singh went to village Behak Gujran to meet his cousin· Harnam Singh and asked for hie assistance. Accordingly, Harnam Singh agreed to accompany Gurdip Singh. On May 9, 1959, both of them went to Zira and requested the Patwari and Girdawar to proceed to the spot and deliver to them the possession of Tej Kaur's land. The Patwari, however, told them that since the Qanungo was not in station, they might see him in the e~n­ing. While they were in the Court compound, fl"ara Singh, the brother of Gurdip Singh's wife met them. He was also requested to join them and he agreed. As suggested by the Patwari, the three of them went to see him in the evening. Then they all started towards the land in order to deliver possession to Gurdip Singh. The fields in question were at a· distance about mile from the village abadi. As they approached the fields, ' they saw the appellant Mohan Singh grazing cattle nearby. Mohan Singh was accordingly informed by the Chowkidar who had joined the party that they had arrived to deliver possession of the land to Gurdip Singh. Mohan Singh thereupon left the spot on the pretext that he was hungry and could not wait. The Qanungo and the Patwari then delivered possession of the land in dispute to Gurdip Singh and the delivery was duly pro-claimed in the village. Since formal report about the delivery of possession had yet to be made)J;he party went back to the village. While they Wllre at distance of abol1t two squareR, the appellants and their companions were noticed coming out of grove of 'khajoor' trees armed with lathi each. As soon as the appellants were seen by Gurdip Singh and Harnam Singh, they tried to run away but the assailants chased them and surrounded them. Dalip Singh opened the attack on Gurdip Singh by giving him blow with 'dang' on the head. ~ ag ir Singh followed and useq llis 'dang' on Gurdip

1962 Mohan Singh •• Stat1 of PunjtAb Gajtndrag•dkar J.

1962 .\ft1han Singh v. S14t1 of Pu!liab tlqj<ndra1adi;ar .T.

854 SUPRE,\IE COURT REPORTS [1962] SUPP.

Singh's right arm. As result, Gurdip Singh fell down unconscious. Tho appellants then assaulted Harnam Singh and gave him several blows on all parts of his body. An alarm was raised by tho other members of the party and so, the assailants were afraid that villagers might arrive at the scene. That is why they ran away. Gurdip Singh was then put in bus and taken tu the hospital at Zira. Medical help was gi>en to him, but that proved ineffective and he ultimatelv succumbed to hiR injuries in tho early hours uf tho next morning. Hnrnam Singh received treatment and has re-covered. It is on these facts that the appollants and their companions were tried beforo the learned Additional Sessions Judge at Ferozeporc for having committed the offences as charged.

All the accused denied the said charges. The loamed trial Judge considered the cvidencr given by the principal eye-witnesses Harnam Singh Phula, the Chuwkidar and Sandbura Singh, the Qanungo; he alRo examined the medical evidence and camo to tho conolusion that thn said evidence considered as whole, proved the charge a11;ainst the appellants under R. 302, read with 'I· 14!l and 147 beyond reasonablo doubt. Hn likewise held that the charge ag1dnst D.tlip Singh under s. :!02 and 14 7 was satisfactorily provnd. Tn regard to the two Piara Singhs, howevor, h" came tu the con-clusion that the motive fur the commission of the offence on whi0h tho prosecution relied, was not available against them; that th,,ir names mentioned in the First Information Report did nut satisfac-torily prove thoir identity and that on the pro-babilities, it looked vnry unlikely that the two l'iara Singhs by reason of their alleged remote role.ti on· ship with the threo other accused or th<'ir friend· ship with them, could have joined in making the assault on Gnrdip Singh and Harnam Singh. Ho qojd that t)je reasons given by the prosecution fur

3 S.C.R.

their joining in the assault appeared to him to be weak as so, he entertained reasonable doubt as to whether they had really taken part in the assault at all. That is how he gave them the benefit of doubt and acquitted them. It appears from his judgment, however, that the learned Judge was satisfied that the large number of in-juries inflicted on Harnam Singh and Gurclip Singh and the complete absence of injuries on the persons of the assailants would show that the odds were very uneven and that emphasised that tho assault must have been the work of more than 3 or 4 members. He also held that the direct evidence of disinterested witnesses indicated that there were five assailants and so, he had no doubt that the charges of unlawful assembly and rioting were brought home even though he was acquitting two of the accused persons. In other words, accor- . dingto ths learned Judge, though two ofthefive persons, charged were acquitted, that still left five or more persons who were concerned with the assault and so, the charge under s. 147 was esta-blished. It is in the light of this finding that he convicted the appellants under s. 302/149.

When the appeal was argued before the· High Court on behalf of the appellants, the findings of the learned Judge un the merits were challenged and the High Court considered the said challenge by e:x:amining the evidence for itself. Ultimately, it was satisfied that the viBW taken by the trial Court was right. It appears that in respect 0f the charge under s. 149, the only contention raised before the High Court was that the said section did not apply because the incident which resulted in the death of Gurdip Singh was no more than chance encounter. The High Court e:x:amin~ this argument and held that the assailants wore lying in wait for Gurdip Singh and so, the assault on Gurdip Singh was tile work of th.e membe~s "of tqe

1962 -+-Mohan Singh v. State of Punjab GaJen,agadka1 J

Jlf ohczn Singh v. St'1lt of Pruijab Gojtndr~gadkar J.

unlawful assembly as alleged by the prosecution. No argument wall urged before the High Court th~t the acquittal of the two Piara Singhs in Jaw renderer! sect.ion 14!l inapplicable to the case.

Mr. Raghubir Singh, however, contended that tho finding of tho trial Court about the pre-sence of five asRailants even after ignoring the alleged presence of the. two Piara Singhs is not justified. Indeed. his case is that like the charge which specifies five named persons as the assai-lants, the whole of the evidence refors to the said five persons as the assailants nnd no one else. This position is not disputed by Mr. Bindra who appears for the Stat-0 and so, we must pror,eed to deal with the merits of tho appeal on the as-sumption that both in tho chargo and in the' evidence, the prosecution calle in that five named persons wore the members of an unlawful assembly two of whom have been acquitted; and that mises the question all to whether. the acquittal of the two Piara Singhs leaves it open to the prosecution to rely upon section 149 ag:iinst the appellants.

The true legal poRition in regard to the essen-tial ingredients of nn offence specified by s. 149 a~e not in doubt. Section 149 prescribes for vicarious or ronstructive criminal liability for all members of an unlawful assembly where an offence is committed by any member of such an unlawful assrmbly in prosecution oft.ho common object of that 1188emhlv or such as the members of that nsscm bly knew to he likely to bn committed in prosecution of that object. It would thus be noticed that one of the essential ingredients of section 149 is that the offence must havo been committed by any member of an nnlawful assem-bly, nnd s. 141 makes it clear that it is only where five or more persons constituted an aseern hly that an unlawful a.ssemhly is born, provided, of cm~rso; the othP-r requirements of the sairl sectjoq

. SUPREME COURT REPORTS

3 S.C.R.

as to the common object of the persons composing that assembly are satisfied. In other words, it is an essential condition of an unlawful asRembly that its membership must be five or more. The argument, therefore, is that as soon as the two Piara Singhs were acquitted, the membership of the assembly was reduced from five to three and that made s. 141 inapplicable which inevitably leads to the result that s. 149 cannot be invoked against the appellants. In our opinio'n, on the facts of this case, this argument has to be upheld. We have already observed that the point raised by the appellants has to be dealt with on the assump-tion that only five persons were named in thf' charge as persons composing the unlawful assembly and evidence led in the course of the trial is confined only to the said five persons. If that be so, as soon as two of the five named persons are ac:quitted, the assembly must be deemed to have been composed of only three persons and that clearly cannot be regarded as an unlawful assembly.

In dealing with the question as to the appli-cability of s. 149 in such cases, it is necessary to bear in mind the several categories of cases which come before the Criminal Courts for their decision. If five or more persons are named in the charge as composing an unlawful assembly and evidence adduced by the prosecution proves that charge against alt of them, that is very clear case where s. 149 can be invoked. It is, however, not necessary that five or more persons must be con-victed before charge under s. 149 can be success-fully brought home to any members of the unlawful assembly. It may be that less than five persons may be charged and convicted under s. 302/149 if the charge is that the persons before the Court along with others named constituted an unlawful 11~sembl!; tlje other fersons so named wa;Y not he

1962 Mohan Singh v. Slate of Punjab Gajendragadkar .1.

1962 Mohori Singh v. Stall of P1mj•b Gajtndrogadkar J.

available for trial aloug with their companions for the reason, for instance, that tlwv have absconded. In such case, the fact that Jess" than fivo persons are before the Court cloes not make section 14() inapplicable fur the simple reason that both the cht\rge and the evidence seek to prove that the persons before the court and others number more than five in all and as such, they together constitute an unlawful assembly. Thcr~furn, in order to bring home chaq!e undor s. 14fl it is not nece~sary that five or more persons must necessarily be brought before tho court and convicted. Similarly, Jess than five persons may he charged under R. 14fl if the prosecution cuse is that the persons before thn Court and others numbering in all more than five composed rin unlawful assnm-bly, these others being persons not ·identified and sn not named. In Ruch case, if evidence shows that the persons befom the Court along with un-identifiect and un-named assailants or members com-posed an unlawful assembly, those before the Court can be con v ictccl under section I 49 t.hough tho un-named and 1111-irlent.ified pcrsonH an• not t.rar.-·d :\Ilfl charged. CasPs may also arise where in the ch:irgc, the prosecution names fivA or more persons and alleges that they constituted nn unlawful asRembly. In such cases, if both the charge and the e,·idenec are confined to t.ht' persons named in the charge and out of the persons so uamcd two or inore are aoquit.tcd leaving before the court less than five persons to be tried, thens. 149 cannot be invoked. Even in such caseH, it is poHsiblo that though the charge names five or more persons n.s composing an unlawful assembly, evidence mav nevertheless show that t.Jic un]awfui assembly consisted of SOlllf' other persons as well who were not identified and sn not nam<'d. In Ruch crises, either tho trial c:ourt or even the High Court in appeal may be able to come to t,ho conclusion that the acquittal of so111e of tho3 S.C.R. SUPREME COURT REPORTS

persons named in the charge and tried will not necessarily displace the charge under section 149 because along with the two or three persons convic-ted were others who composed the unlawful assem-bly 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 does not affect the validity of the charge under section 14fl because on the evidence the court of facts is able to reach the conclusion that the persons composing the unlawful assembly nevertheless were five or more than five. It is true that in the last cate6ory of cases, the court will have to be very careful in rea-ching the said conclusion. But there is no legal bar which prevents the court from reaching such conclusion. The failure to refer in the charge to other members of the unlawful assembly un-named and unidentified may conceivably raise the point as to whether prejudice would be caused to tbe persons before the Court by reason of the fact that the charge did not indicate that un-named persons also were members of the unlawful assembly. But apart from the question of such prejudice which may have to be carefully considered, there is no legal ba.r pre-venting the court of facts f~om 'holding that though the charge specified only five or more persons, the unlawful assembly in fact consisted of other per-sons who were not named and identified. That appears to be the true legal position in respect of the several categories of cases which may fall to be tri~d when charge under section .149 is framed.

In this connection, we may refer to three representative decisions of this Court. In Dalip Singh v. State of Punjab (') this Court has held that before section !49 can be applied, the Conrt must l;e satisfied that there were at least five persons sharing the common object. It has nisei been held that this .does not moan that fivo persoµs mqst (I) (1954] S.C.R. 145.

Mohan Singh •• State of Punjab

GajuJdragadkar J.

1962 Mohan Sinqh V· St.Ii of Punjab Oo,jt11drayadAar J.

always be convicted before s. 14!) can be applied. If the .Judge concludPs that. five persons were unque.qtionably present and sharer! the common object, though the identity of some of them is in doubt, the co;iviction of the rest would be good. In that case, this Court took the view that the evidence adduced by the -prosecution did not satisfactorily prove the fact th11t the unlawful assembly was com-posed of five or more persons, and so, 8. 14!) was held to be inapplicable. In other words, on facts relevant for the purpose of applying s. 14!) this case is similar to the case with which we are concornerl in t.he present appeal.In Bltarwarl Mepa Dana v. State of Bombay (') t.his Court was dealing with case where twelve named persons were charged with having formed an unlawful assembly with the com. mon object of committing the murder of three per-sons, At the trial before the Sessions Judge, seven of the named persons were acquitted and five wnm . convicted under s. 3(12/149 and s. 302/34. On appeal, the High Court acquitted one of tho convic-t€d persons but _maintained the c01n·iction :md sen. tence passed on the rest. The validity of the said order of conviction and sentence was cballcnged bofore this Court on several grounds, one of which was that. s. 149 became inapplicable as soon as eight ont of the twelve persons named as mom bcrR of the unlawful assembly were acqnitted. In rejecting t.his argum<mt, this Con rt referred to the finding recorded by the High Court that the unliiwful assembly in question consisted of ten to thirteen persons out of whom only four were identified and not the rest; and held that it was open to the High Court to come to such finding. The argumPnt. which was urged against the valicfity of such ·findinl! was put alternati\·ely in two forms. It was first cont.ended that the prosecution cas<~ must be confi-ned t.o t.hn charge mmcd against tho accused per-sons and the charge in tho Sessions Court rcferreq Pl p96ol 2 s.c.R. 11~.

to twelve named persons as composing the unlawful assembly, and so, as so0n as eight of them were acquitted, s. 149 became inapplicable. It was also urged that in coming to the conclusion that the unlawful assembly consisted of ten to thirteen per-sons, the High Court was making out case of new unlawful assembly and that was not permissible in criminal trial. Both these arguments were re-pelled by this Court and· it was held that there was no legal bar which prevented the High Court from coming tu the conclusion that apart from the per-sons who were acquitted and excluding them, evi-dence adduced by tho prosecution showed the pre-sence of more than five person8 who composed the unlawful assembly. 1'he assembly about the exis-tence of which the High Court has made finding is not new assembly but the same assembly as alleged by the prosecution. The only difference js that according to the charge, all, the members of the assembly were alleged to be known, whereas on the evidence the High Court has reached the con-clusion that the identity of all the members of the assembly has not been established, though the num-ber of the members composing the assembly is defi-nitely found to be five or more. It is on this reaso-ning that this Court confirmed the conviction of the· appellants under s. 302/149. Thus, this decision illustrates how s. 149 cam be applied even if two or more of the person~ actually charged are acqµitted.

The same principle has been enunciated by this, Court in Kartar Singh v. State of Punjab(') . According to this decision, it is only when the num-ber of alleged assailants is.definite and all of them are named and the number. of persons found to be proved to have taken part in the incident iR less than five, that it cannot be held that the assailants, party must have consisted of five or more persons. It is true that having stated this position, this Court has also observed that the fact that certain (IJ 1100212 s.c.R 395.

Mohan Singh v. State oj P~njab

Gojendra ~ad~tr J,

.:,fohon Sinth v. St.U of Punjab ·ajendrogad!ar J.

862 Sl:J'PREME COURT REPORTS [1962) SUPP.

persons arc named in the charge as composing an unlawful assembly, cxcl11rlt>s the possibility of other persous to be in the sai<l asHcmbly especially when there is no occasion to think that the witnesses who named all the accused could have committed mis-takes in. recognising the assailants. It is on this observation that Mr. Haghubir Singh reliee. We, however, think that it would ho unreasonable to read this statement as laying <lown an unqualified propo-sition that whenever persona named in the charge are alleged to constitute au unlawful assembly it is legally not permissible to the proseeution to prove during the trial that persons in addition to those named in the charge also were members of the said assembly. In other worrls, what this observation inteuds to suggest is that where persons' named in tho charge are alleged to compose an unlawful assc;mbly, the 9ourt of facts would be slow to come to the conclusion that persons other than those named in the cha1ge were members of the said assembly. If however, it appears on evidence that persons not so named in the charge were members of the unlawful assembly, there is no legal bar which prevents the courts from reaching that con-clusion. This position can and does arise where some of the persons composing the unlawful as~em­bly are not identified by tho witnesses and they are not named. In fact, the decision in the ease of Kartar Siugh itself shows that this Court rejected the appellants contention that their conviction under AB. 302 and 307, read with s.149 waa invalid. Therefore, we see no inconsistency between the observations mado in this case and the earlier deci-sions to which we have just referrnd. Tbe result is that in the circumstances of the present ease, tho appellants are entitled to contend thats. 149 cannot be invoked against them.

That inevitably takes us to the question as to whether the appellants can be convicted under

sb:P:REME cou:Rt irE::PoR.rs

saa

3 s.c.:R.

s.302/34.. Like s. 149, section 34 also deals with cases of constructive criminal liability. It provides that where criminal act is done by sevornl persons in furtherance of the common intention of all, each of such. persons is liable for that act in the same manner as if it were done by him alone. The essential constituent of the vicarious criminal liability prescribed by s. 34 is the existence of common intention. If the common intention in question animates the accused persons and<if thP said common intention leads to the commission of the criminal off'lnce charged, each of the persons sharing the common intention is constructively liable for the criminal act done by one of them. Just as the combination of persons sharing the same common object is one of the features of an unlawful assembly, so the existence of combination of persons sharing the same common intention is one of the features of s. 34. In some ways the two sections are similar and in some cases they may overlap. But, nevertheless, the common intention which is the basis of s. 34 is different from the common object . which is the basis of the composition of an unlawful assembly. Common intention denotes action-in-concert and necessarily postulates the existence of pre-arranged plan and that must mean prior meeting of minds. It would be noticed , that cases to which s. 34 can be applied disclose an element of participation in action on the part of all .the accused persons. The acts may be different; may vary in their character, but they are all actuated by the same common intention. It is now well-settled Lhat the common intention required by s. 34 is different from the same intention or. similar intention. As has been observed by the Privy Council in MalWubSlw.h v. King Emperor (I), common intention witliin the meaning of s. 34 implies pre-arranged plan, and to convict the accused of

(I) (194 5) L,R, 72.f.A.)48.

1962 Mohan Singh v. State of Punjab Gajendraiadkar J,

Mohan Singh •• Sto_I, oj Punjob UaJemlrtJgtuilctl'f J.

864 sUPREME COURT REPoRTS [1962] SUPP.

an offence applying t.hf' section it ~hould be proven that the criminal act was done in concert pursuant to the pre-arrnnge<l pla.n and that the inferunce of common intention shoul<l mwer be rcacb~d unlesH it is necet!Bllry inference deducible from the cirnums-tanccs of the case.

What then arc the facts and circumstances proved iu tho pre~ent case? It i~ proved that tho appellants shared with Du.lip Singh the motive which imp11llcd Dalip Singh to inflict the fatal blow on Gurdip Singh. Tho close relationship between the appellant~ and D&lip Singh loaves no room for doubt that they ttharcd tho sumc motive with Dalip Singh to the au.me <'Xtent. It is also proved that Dalip Singh and tho two appellants were lying in wait for Gurdip Singh. We have also seen that when the party accompanying Gurdip Singh told the appellant Mohan Singh that the Patwari and the Qanungo had oome on the spot to deliver posae85ion of the land to Gurdip Singh, Mohan Singh pretended that he was hungry and went away. Then he seems to have contacted Dalip Singh and Ja.gir Singh and all the three were lying in wait for Gurdip Singh, who, they knew, would pass that way. Thus, the two appellants and Dalip Singh, deliberately con-cealed themselves bchiud a. grove of Kha.joor trees and were a.rmed with la.this. This conduct on the part of the three assailants clearly shows that they ha.d the oommon intention of fa.tally aBSaulting Gurdip Singh. That alone can e~plain why they were a.rmt,-d with la.this and why they hid themaelvea behind the Khajoor trees. Besides, as soon as Gurdip Singh and Harnam Singh ca.me near the plaoe where the appellants lay conocaled, all of them rushed on Gurdip Singh and chatted him when he and Harnam Singh began to run away. This conduc,-t alHo clearly indieates the presence of the common intention. After chasing the victims, three of them aw·rounded them and Dalip Sin1;h, gave

s.c.:R.

SUPREME OOURT REPORTS

the fatal blow on Gurdip Singh. In the act of surroundiug Gurdip Singh, the two appellants un-doubtedly played their part and thus helped Dalip Singh. After Gurdip Singh was fatally assaulted, the three assailants apprehended that the villagers would rush on the scene becau&e an alarm had then been raised and so, they ran away together. On these facts, the conclusion appears to be inescapable that the appellants and Dalip Singh were actuated by the common intention to kill Gurdip Singh and the attack made by Dalip Singh on Gurdip Singh was in furtherance of the said common intention. Therefore, in our opinion, there is no difficulty whatever in coming to the conclusion that the appellants are guilty under section 302/34 of the Indian Penal Code. We have no doubt that if the appellants had raised before the High Court the contention that s. 149 was inapplicable to their case, the High Court would have without any hesi-tation altered their conviction from under s. 302/149 into one under s. 302, read with s. 34.

The result is, the conviction of the. appe!Jants is accordingly altered into one· under section 302, read with section 34 of the Indian Penal Code. This modification in the order of the conviction does not require any change in the order of sentence at all. For the offence under section 302, read with s. 34 of which we are convicting them, they would be sentenced to imprisonment for life. The conviction and sentence for _the offence under section 147 is, however, set aside and they are ordered to be acquitted in respect of that offence. ·

1962 Mohan Singh v. State of Puniob

Gajendragotlk1r J.