{"id":230674,"date":"1963-01-29T00:00:00","date_gmt":"1963-01-28T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/ram-bilas-singh-ors-vs-the-state-of-bihar-on-29-january-1963"},"modified":"2016-01-20T15:11:26","modified_gmt":"2016-01-20T09:41:26","slug":"ram-bilas-singh-ors-vs-the-state-of-bihar-on-29-january-1963","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/ram-bilas-singh-ors-vs-the-state-of-bihar-on-29-january-1963","title":{"rendered":"Ram Bilas Singh & Ors vs The State Of Bihar on 29 January, 1963"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Ram Bilas Singh & Ors vs The State Of Bihar on 29 January, 1963<\/div>\n
           PETITIONER:\nRAM BILAS SINGH & ORS.\n\n\tVs.\n\nRESPONDENT:\nTHE STATE OF BIHAR\n\nDATE OF JUDGMENT:\n29\/01\/1963\n\nBENCH:\n\n\nACT:\nCriminal   Trial-Unlawful  assembly-Acquittal  of   accused-\nConviction of less than five-Legality of-Indian Penal  Code,\ns. 149.\n\n\n\nHEADNOTE:\n     The facts alleged by the prosecution were these\nThe first appellant brought with him in a truck to the scene\nof  the occurrence a mob of 40 to 50 persons  including\t the\nother  two  appellants\tand  four  other  persons  who\twere\nacquitted  by the trial court.\tThe first appellant fired  a\nshot  from  the gun which he was carrying which\t hit  Laldeo\nSingh  on  the\tchest as a result of  which  he\t fell  down.\nThereupon  none of the acquitted persons fired from his\t gun\nand  the shot hit Laldeo Singh again.  Thereupon another  of\nthe  acquitted persons fired a shot at Laldeo  Singh  which.\nkilled\thim instantaneously.  The first appellant fired\t two\nshots at one Deva Singh who was hit on his thigh.  The other\ntwo appellants assaulted Deva Singh with lathis of the seven\npersons\t charged, four were acquitted.\tThe appellants\twere\nconvicted  under  s.  304 Part II read with s.\t149  of\t the\nIndian\tPenal Code by the trial court.\tOn appeal  the\tHigh\nCourt  altered their conviction into one under s.  326\tread\nwith  s.  149 of the Indian Penal Code\tbut  maintained\t the\nconvictions  under  S. 147 and s. 426 of  the  Indian  Penal\nCode.\tIt  was contended before the Supreme Court  that  as\nthere  was  no\tappeal before the  High\t Court\tagainst\t the\nacquittal of the four acquitted persons who were alleged  to\nhave  constituted  the\tunlawful  assembly  along  with\t the\nappellants  there  could  be no finding that  there  was  an\nunlawful  assembly  of\twhich appellants  were\tmembers\t and\ntherefore, were liable, for the acts of other members\n776\nthereof\t and  that an accused person cannot be\theld  liable\nvicariously for the act of an acquitted person.\nHeld,  that  even  assuming that the fatal  in\tjuries\twere\ncaused to Laldeo Singh by one of the four acquitted persons,\nit  was\t not  open  to the High Court to  hold\tany  of\t the\nappellants  liable for that act by resort to s. 149  of\t the\nIndian Penal Code.\nHeld,  further\tthat the legal position deducible  from\t the\nauthorities was (i) that it is competent to a court to\tcome\nto  the\t conclusion that there was an unlawful\tassembly  of\nfive  or more persons, and actually convict less  than\tthat\nnumber\tfor the offence if (a) the charge states that  apart\nfrom  the persons named, several other unidentified  persons\nwere  also  members of the unlawful  assembly  whose  common\nobject was to commit an unlawful act and the evidence led to\nprove this is accepted by the court ; (b) or that the  first\ninformation  report  and the evidence shows such to  be\t the\ncase even though the charge does not state so ; (c) or\tthat\nthough\tthe charge and the prosecution witnesses named\tonly\nthe  acquitted\tand the convicted accused persons  there  is\nother  evidence\t which discloses the existence of  named  or\nother  persons\tprovided  that\tin  cases  (b)\tand  (c)  no\nprejudice has resulted to the convicted person by reason  of\nthe omission to mention in the charge that the other unnamed\npersons had also participated in the offence.\n    Harchandra v. Rex.\tI.L.R. (1951) 2 All. 62, approved.\nTo  pandas  v. State of Bombay, [1935] 2 S.C.R. 881,  R.  v.\nPlummer,  [1902] 2 K.B. 339, Bharwad Mepa Dana v.  State  of\nBombay,<\/a>\t [1960]\t 2  S.C.R. 172, Kartar\tSingh  v.  State  of\nPunjab, [1962] 2 S.C.R. 395, Dalip Singh v. State of Punjab,<\/a>\n[1954]\tS.C.R. 145, Sunder Singh v. State of  Punjab  [1962]\nSupp.  2 S.C.R 634, Mohan Singh v. State of  Punjab,  [1962]\nSupp.  3  S.C.R. 848, and Krishna Govind Patil v.  State  of\nMaharashtra,<\/a> [1964) Vol.  1 S.C.R. 678, referred to.\nHeld,  also  that  the High Court had  failed  to  determine\nmaterial questions necessary for property deciding the case,\nnamely that it had not fully examined the evidence to  come,\nto a definite conclusion as to whether there was an unlawful\nassembly  or  not  consisting  of  persons  other  than\t the\nacquitted persons and that the High Court had also failed to\nascertain  the\tparticular act committed by  any  member  or\nmembers of that assembly in furtherance of the common object\nas  also whether any of the appellants had participated\t in,\nthe said incident.\n\n\n\nJUDGMENT:\n<\/pre>\n
CRIMINAL  APPELLATE JURISDICTION: Criminal Appeal No. 73  of
\n1961.\n<\/p>\n
 777<\/span><\/p>\n
Appeal\tby special leave from the judgment and\torder  dated
\nNovember 3, 1960 of the Patna High Court in Criminal  Appeal
\nNo. 326 of 1958.\n<\/p>\n
Jai  Gopal  Sethi,  C.L. Sareen and R.\tL.  Kohli,  for\t the
\nappellants.,
\nS.P. Varma, and R. N. Sachthey, for respondent.
\n1963.  January 29.  The judgment of the Court was  delivered
\nby
\nMUDHOLKAR,  J.-This  is an appeal by special  leave  from  a
\njudgment of the High Court of Patna altering the  conviction
\nof the appellants under s. 304, Part 11 read with s. 149  of
\nthe  Indian  Penal Code into convictions under s.  326\tread
\nwith  s.  149,\tI.P.C. but  maintaining\t the  sentences\t and
\naffirming the convictions under s. 147 and s. 426, I.P.C. as
\nwell as the sentences awarded in respect of those offences.
\nThe  prosecution case was that there was a  dispute  between
\nRam  Bilas  Singh of Shahpore and, his two sons\t Ram  Naresh
\nSingh  and Dinesh Singh on the one hand\t (appellants  before
\nus) and Deva Singh (P.\tW. 2) and his brothers on the  other
\nwith respect to a Dochara in a village Dihara.\tOn April 22,
\n1957,  at about 9.00 a.m. while Deva Singh, along  with\t his
\nbrother\t Laldeo\t Singh, the deceased and two  other  persons
\nDhunmun\t Singh (P.  W. 4) and Dasain Hajam were\t sitting  in
\nthe  Dochara  the appellant No. 1 Ram  Bilas  Singh  arrived
\nthere  in  a  truck with a mob of 40  to  50  persons  which
\nincluded  the other two appellants before us,  besides\tfour
\nother  persons who were acquitted by the trial\tcourt.\t Ram
\nBilas Singh is said to have fired from the gun which he\t was
\ncarrying which hit Laldeo Singh on the chest as a result  of
\nwhich he fell down, but got up later.\n<\/p>\n
778<\/span><\/p>\n
Thereupon Ramdeo Singh (acquitted by the trial court)  fired
\nfrom his gun and the shot hit Laldeo Singh on the chest\t and
\nhe fell down again.  After that, Ram Bilas Singh Gumasta  of
\nDihara\t(acquitted by the trial court) fired a second  shot’
\nfrom his gun hitting Laldeo Singh on the abdomen and killing
\nhim  instantaneously.\tThe  appellant Ram  Bilas  Singh  is
\nfurther\t said to have fired two shots at Deva Singh  hitting
\nhim  on\t his right thigh.  Appellants Ram Naresh  Singh\t and
\nDinesh\tSingh  are said to have assaulted  Deva\t Singh\twith
\nlathis as a result of which he fell down and thereafter\t the
\nmob  proceeded to dismantle the Dochara by  demolishing\t its
\nmud  pillars,  as a result of which its thatched  roof\tfell
\ndown.  Having achieved their object, the mob is said to have
\nleft  the  place, taking away along with them  a  palang,  a
\nbamboo cot, two quilts, one lantern and one garansa.
\nThe  incident attracted it number of villagers to  the\tspot
\nincluding  jagdish  Singh, Bhagwat Singh  (since  dead)\t and
\nAjodhya Singh.\tAfter report was lodged of the incident, the
\npolice arrived on the spot, held the panchnama (inquest)  on
\nthe body of Lal Deo Singh and followed the’ usual procedure.
\nA  starch was made for the seven accused persons,  including
\nthe  appellants, but it took some time to find them out\t and
\narrest\t them.\t Eventually,  they  were  placed  before   a
\nmagistrate  who committed them for trial for offences  under
\ns.  148,  s. 302 read with s. 149 and s.  426,\tI.P.C.,\t the
\nappellant Ram Bilas Singh, Ramdeo Singh and Ram Bilas  Singh
\nGumasta\t of Dihara were specifically charged  with  offences
\nunder  s.  302, I.P.C. for having committed  the  murder  of
\nLaldeo Singh.  Ram Bilas Singh was further charged under  s.
\n307  of\t the  Indian Penal Code for attempt  to\t commit\t the
\nmurder of Deva Singh while Ram Naresh Singh and Dinesh Singh
\n(appellants  2\tand 3) were further  charged  with  offences
\nunder  s. 323, I.P.C. for assaulting Dhunmun Singh  (P.\t  W.\n<\/p>\n
4).  The court of
\n 779<\/span>
\nSession\t acquitted  both Ram Bilas Singh as well  as  Ramdeo
\nSingh  of  the\toffence\t under s.  302,\t I.  P.C.  and\talso
\nacquitted all the seven accused persons of the offence under
\ns.  302 read with s. 149, I.P.C. It, however, convicted\t the
\nthree  appellants before us under s. 304, second part,\tread
\nwith s. 149 of the I.P.C. and under ss. 147 and 426,  I.P.C.
\nbut acquitted the appellants 2 and 3 of the offence under s.
\n323, I.P.C.\n<\/p>\n
Briefly stated, the defence of the three appellants was that
\nthe  appellant\tRam  Bilas Singh was in\t possession  of\t the
\ndochara,  that\tit  was\t Laldeo Singh  and  Deva  Singh\t who
\nthreatened  to\tdismantle the dochara and,  therefore,\tthey
\nmarched\t there on the date of the incident at the head of  a
\nmob  consisting\t of  15 or 20  persons\tcarrying  with\tthem
\nvarious weapons.  During the incident, Laldeo Singh and Deva
\nSingh are said to have flourished their farsis and  gandasas
\nwhile  some  other members of their party are said  to\thave
\nused  their  lathis  and spears as a result  of\t which\tfour
\npersons on the side of the appellants received injuries.  In
\nthe  meantime, in self-defence, one Ram Lakhan Singh  (since
\ndeceased) fired a shot from his gun and ran away.  This shot
\nis said to have hit Laldeo Singh and also Deva Singh.  After
\nbeing  injured in this manner, Laldeo Singh is said to\thave
\ndropped down dead and then the mob dispersed.
\nThe  defence of the appellants that they were in  possession
\nof the dochara and that Laldeo Singh and Deva Singh were the
\naggressors  has been rejected by both the courts  below\t and
\nMr. Sethi who appears for the appellants has not even sought
\nto  controvert the finding on that point.   His\t contention,
\nhowever, is that the appellants having been acquitted of the
\noffence\t under\ts.  302\t read with s.  149,  1.\t P.  C.\t and
\nappellant No. 1 having been acquitted of the offences  under
\ns. 302 and s. 307, I.P.C. none of them could
\n780<\/span>
\nbe  convicted under s. 326 read with s. 149, I.P.C.  Learned
\ncounsel points out that the clear case of the prosecution in
\nthe  charge sheet was against seven named persons i.e.,\t the
\nthree  appellants  before  us, Ram Bilas  Singh\t Gumasta  of
\nDihara,\t Sudarshan  Singh son of Ram  Bilas  Singh  Gumasta,
\nRamdeo\tSingh  and  Sakal Singh sons  of  Raghoo  Singh\t and
\ncontends  that\tout  of\t these,\t four  persons\thaving\tbeen
\nacquitted, the remaining three persons could not be said  to
\nhave  been members-of an unlawful assembly  and,  therefore,
\nthey could neither e convicted under s. 147 I.P.C. nor could
\nthey  be convicted of any other offences with the aid of  s.
\n149,  I. P.C. All that it was competent for the court to  do
\nwas to convict each of them for their individual acts and no
\nmore.  Learned counsel further contends that without setting
\naside  the acquittal of the four alleged associates  of\t the
\nappellants,  there  could be no finding to the\teffect\tthat
\nthere was an unlawful assembly of which the appellants\twere
\nmembers\t and were, therefore, liable for the acts  of  other
\nmembers\t thereof.  Further, it was urged by learned  counsel
\nthat an accused person cannot be held liable vicariously for
\nthe act of an acquitted person and, therefore, even assuming
\nthat  the fatal injuries were caused to Laldeo Singh by\t one
\nof  the four acquitted persons, it was not open to the\tHigh
\nCourt to hold any of the appellants liable for that act with
\nthe aid of s. 149, I.P.C.\n<\/p>\n
Learned\t counsel  relied upon a passage in the\tjudgment  of
\nAgarwala J., in Harchanda v. Rex which reads thus :\n<\/p>\n
\t      “Now in a criminal case the burden of proof is
\n\t      always  on  the prosecution.  It\tis  for\t the
\n\t      prosecution to establish the responsibility of
\n\t      the  accused  for the crime  alleged.   Having
\n\t      regard  to  the fact that there is  no  appeal
\n\t      against  the  acquittal  of  the\tother\tfive
\n\t      accused  before us, and having regard  to\t the
\n\t      fact that we cannot
\n\t      (1)I.L.R. (1951) 2 All. 62, 73.\n<\/p><\/blockquote>\n
\t       781<\/span><\/p>\n
\t      interfere\t with  the finding  of\tthe  learned
\n\t      Sessions\tjudge, so far as it  concerns  those
\n\t      accused, we cannot hold that either Durga\t Das
\n\t      or Sukhbir was responsible for inflicting\t the
\n\t      incised  wounds:\tand  since it  was  not\t the
\n\t      prosecution  case that there was some  unknown
\n\t      person  along with the accused, who  was\talso
\n\t      holding  a  sharp-edged  weapon,-\t we   cannot
\n\t      ascribe  the infliction of the incised  wounds
\n\t      to  some such unknown person.  The  result  of
\n\t      the  prosecution\tevidence,  taken  with\t the
\n\t      findings\tof  the learned Sessions  judge,  is
\n\t      that the prosecution is unable to explain\t the
\n\t      infliction  of  the  incised  wounds.  in\t  my
\n\t      opinion  in such a case the accused cannot  be
\n\t      held constructively liable for the  infliction
\n\t      of those wounds.”\n<\/p><\/blockquote>\n
There  is no doubt that the High Court has observed  in\t its
\njudgment  under\t appeal that Laldeo Singh was killed  -as  a
\nresult\tof one of the shots fired at him by Ram Bilas  Singh
\nGumasta\t who was acquitted by the court of Session.  We\t may
\nquote the observations made by it in this regard.  They are
\n\t      “It  seems,  as I shall  show  hereafter,\t the
\n\t      trial court was greatly prepossessed in favour
\n\t      of Ram Bilas Singh of Dihara, and therefore it
\n\t      ruled  out without disbelieving the  evidence,
\n\t      the  possibility of Laldeo Singh\thaving\tbeen
\n\t      killed  by  the third shot fired\tby  Rambilas
\n\t      Singh of Dihara.\tIt is admitted that the\t two
\n\t      Rambilas Singh and Ramdeo Singh have each held
\n\t      a\t licensed  gun\tempty  cartridge…….These
\n\t      guns  and the which had been found by P W.  21
\n\t      at  the place of occurrence were\texamined  by
\n\t      the  Fire\t Arms  Expert The  trial  court\t has
\n\t      explained\t away  this  very  strong  piece  of
\n\t      evidence\t  of\tunimpeachable\t  character,
\n\t      supporting the version of the witnesses
\n\t      782<\/span>
\n\t      that  Rambilas Singh of Dihara had  fired\t one
\n\t      shot from his gun, on a very flimsy ground.”
\nThen  the  High\t Court observed that  the  evidence  of\t the
\nballistic expert was disregarded by the Court of Session  on
\nflimsy grounds.\t The point, however, is that the High  Court
\nhas  come to the conclusion that the shot which resulted  in
\nthe death of Laldeo Singh was fired by an acquitted  person.
\nIf  the\t view taken by the Allahabad High Court\t is  correct
\nthen it would follow that it was not open to the High  Court
\nbefore which the acquittal of Rambilas Singh Gumasta was not
\nchallenged., to reassess the evidence with regard to him and
\nhold  that  it\twas he who had caused the  death  of  Laldeo
\nSingh.\n<\/p>\n
We  will deal with the decision of the Allahabad High  Court
\npresently,  but we must refer to certain decisions  of\tthis
\ncourt to which reference was made during arguments.
\nIn Topandas v. The State of Bombay<\/a> (1), this court has\theld
\n‘that where four named individuals were charged with  having
\ncommitted an offence of criminal conspiracy under s.  120-B,
\nI.P.C.\tand three out of those four were acquitted  of\tthat
\ncharge,\t the fourth accused could not be held guilty of\t the
\noffence\t of criminal conspiracy.  In support of\t this  view,
\nthis court ha-, relied upon a passage in Archbald’s Criminal
\nPleading, Evidence and Practice (33rd edn.p. 201,  paragraph\n<\/p>\n
361) which reads thus
\n\t      “Where  several prisoners are included in\t the
\n\t      same indictment, the jury may find one  guilty
\n\t      and acquit the others, and vice versa.  But if
\n\t      several are indicated for a riot, and the jury
\n\t      acquit all but two, they must acquit those two
\n\t      also,  unless it is charged in the  indictment
\n\t      and  proved,  that  they\tcommitted  the\triot
\n\t      together with some other person not tried upon
\n\t      that
\n\t      (1)   [1955]2 S.C.R. 881.\n<\/p>\n
\t       783<\/span><\/p>\n
\t      indictment. 2 Hawk c. 47 s. 8. And, if upon an
\n\t      indictment  for a conspiracy, the jury  acquit
\n\t      all  the prisoners but one, they\tmust  acquit
\n\t      that  one\t also, unless it is charged  in\t the
\n\t      indictment, and proved, that he conspired with
\n\t      some   other  person  not\t tried\t upon\tthat
\n\t      indictment.”\n<\/p>\n
This court has also quoted with approval a passage from\t the
\njudgment in R. v. Plummer (1), which is one of the decisions
\non which the above ‘passage is founded.\n<\/p>\n
In Bharwad Mepa Dana v. State of Bombay<\/a> (2), this court\t had
\nto  consider  the  correctness of the  conviction  of  three
\npersons under s. 302 read with s. 149 I.P.C. when one  other
\nperson\twho  had been convicted by the Sessions judge  of  a
\nsimilar\t offence had been acquitted by the High\t Court.\t  It
\nmay  be mentioned that originally twelve persons were  named
\nin  the\t charge and it was alleged that they had  formed  an
\nunlawful  assembly  with  the  common  object  of  murdering
\ncertain\t persons.   Seven  of them  were  acquitted  by\t the
\nSessions  judge\t and only five were convicted under  s.\t 302
\nread  with s. 149, I.P.C. The High Court,  while  acquitting
\none  of the five persons, convicted by the  Sessions  Judge,
\nheld that there were ten to thirteen persons in the unlawful
\nassembly though the identity of all the persons except\tfour
\nhad  not  been established, that all these persons  had\t the
\ncommon\tobject\tand  the common\t intention  of\tkilling\t the
\nvictims and that the killing was done in prosecution of\t the
\ncommon\tobject of the unlawful assembly and in’\t furtherance
\nof  the\t common intention of all.  Upon\t these\tfacts,\tthis
\ncourt  held  that  the appellants  before  it  were  rightly
\nconvicted  under s. 302 read with s. 149, I.P.C.,  and\tthat
\nthere was nothing in law which prevented the High Court from
\nfinding\t that  the unlawful assembly consisted of  the\tfour
\nconvicted persons and some unidentified persons, who,
\n(1) [1902] 2 K.B 339.\n<\/p>\n
(2) [1960] 2 S.C.R. 172, 181.\n<\/p>\n
784<\/span><\/p>\n
together  numbered  more  than\tfive.\tThis  court  further
\nobserved :\n<\/p>\n
\t      embark on a discussion as to the legal  effect
\n\t      of  the  acquittal  of  nine  of\tthe  accused
\n\t      persons,\texcept to state that we may  proceed
\n\t      on the footing that the acquittal was good for
\n\t      all  purposes and none of those  nine  persons
\n\t      can  now be held to have participated  in\t the
\n\t      crime so that the remaining four persons may I
\n\t      be  held\tguilty\tunder s.  149  Indian  Penal
\n\t      Code.”\n<\/p><\/blockquote>\n
It  is\ton  the above observations that\t reliance  has\tbeen
\nplaced\tby Mr. Sethi.  He contends that the High  Court\t was
\nwrong in observing that Laldeo Singh was killed as a  result
\nof  a shot fired at him by Ram Bilas Singh Gumasta and\tthat
\nhe has escaped the charge. of murder as he was acquitted  by
\nthe Sessions judge..\n<\/p>\n
Then, there is the decision of this court in Kartar Singh v.
\nState  of Punjab (1), where this court has held that if\t the
\ntrial  court  can  legally find that the  actual  number  of
\nmembers\t in  the assailants party was more than\t five,\tthat
\nparty  will  in\t law constitute an  unlawful  assembly\teven
\nthough\t ultimately  three  of\tthe  accused   persons\t are
\nconvicted.   It\t has further held that it is only  when\t the
\nnumber of the alleged assailants is definite and all of them
\nare named and the number of persons found to have taken part
\nin  the incident is less than five, it cannot be  held\tthat
\nthey formed an unlawful assembly.  Then this court observed
\n\t      “The acquittal of the remaining named  persons
\n\t      must mean that they were not in the  incident.
\n\t      The  fact that they were named,  excludes\t the
\n\t      possibility  of  other persons to\t be  in\t the
\n\t      appellant’s party and especially when there be
\n\t      no occasion to think that the witnesses naming
\n\t      all
\n\t      (1)   [1962] 2 S.C.R. 395. 399.\n<\/p>\n
\t       785<\/span><\/p>\n
\t      the  accused could have committed mistakes  in
\n\t      recognising them.”\n<\/p>\n
In  support of the above conclusion, reliance was placed  by
\nthis court upon the decision of this court in Dalip Singh v.
\nState of Punjab<\/a> (1).\n<\/p>\n
In Sunder Singh v. State of Punjab (2) , also this court has
\nconsidered  the effect of the acquittal of some\t persons  of
\nthe  offence  under s. 302 read with s. 149, I.P.C.  on\t the
\nconviction  of the remaining persons who numbered less\tthan
\nfive.  In dealing with this matter it has observed :\n<\/p>\n
\t      Cases   sometimes\t arise\twhere  persons\t are
\n\t      charged  with  being members  of\tan  unlawful
\n\t      assembly and other charges are framed  against
\n\t      them  in respect of offence committed by\tsuch
\n\t      an  unlawful assembly.  In such cases; if\t the
\n\t      names  of\t persons constituting  the  unlawful
\n\t      assembly are specifically and clearly  recited
\n\t      in the charge and it is not suggested that any
\n\t      other  persons  known  or\t unknown  also\twere
\n\t      members  of the unlawful assembly, it  may  be
\n\t      that  if\tone  or\t more  persons\tspecifically
\n\t      charged,\tare acquitted, that may introduce  a
\n\t      serious infirmity in the charge in respect  of
\n\t      the  others against whom the prosecution\tcase
\n\t      may be proved.  It is in this class of  cases,
\n\t      for instance, that the principle laid down  in
\n\t      the  case of Plummer may have some  relevance.
\n\t      If out of the six persons charged under s. 149
\n\t      of  the  Indian Penal Code  along\t with  other
\n\t      offences,\t two  persons  are  acquitted,\t the
\n\t      remaining\t four may not be  convicted  because
\n\t      the  essential  requirement  of  an   unlawful
\n\t      assembly might be lacking.”\n<\/p><\/blockquote>\n
Upon  the facts of the case before it, this court held\tthat
\nthe principle set out in Plummer’s case (3),
\n(1) [1954] S.C.R. 145.\t(2) [1962] Supp. 2 S.C.R. 654. 663.
\n(3) [1902] 2 K B. 339.\n<\/p>\n
786<\/span><\/p>\n
and  which  has been accepted by this court in\tTopan  Das’s
\ncase  (1), did not apply to the case before it.\t This  court
\nthen proceeded to consider the powers of the court of appeal
\nunder  s.  423 (1) (a) of the Criminal\tProcedure  Code\t and
\nobserved that if in dealing with a case before it, it became
\nnecessary   for\t the  High  Court  to  deal  indirectly\t  or
\nincidentally with the case against the acquitted accused, it
\ncould well do so and there is no legal bar to such a course.
\nUpon the view we are taking it is unnecessary to express any
\nopinion as to whether the interpretation placed in this case
\nupon  the  ambit of the powers under s. 423, Cr.  P.  C.  is
\nconsistent with the principle in Plummer’s case (2).
\nFinally, there is the decision of this court in Mohan  Singh
\nv.  The State of Punjab (3), where a similar question  arose
\nfor  consideration.  There, this court, after  pointing\t out
\nthat where five or more persons are shown to have formed  an
\nunlawful assembly, the mere fact that less than that  number
\nare actually tried for the offence committed by the assembly
\nand  convicted of that offence would not necessarily  render
\ntheir conviction illegal, because other persons may not have
\nbeen  available for trial or may not be properly  identified
\nor for some other reason.  This court has observed :\n<\/p>\n
\t      “………….  In  such cases,  if  both\t the
\n\t      charge  and the evidence are confined  to\t the
\n\t      persons  named  in the charge and out  of\t the
\n\t      persons  so  named two or more  are  acquitted
\n\t      leaving  before  the  court  less\t than\tfive
\n\t      persons  to  be tried, then s. 149  cannot  be
\n\t      invoked.\t Even in such cases. it is  possible
\n\t      that  though  the charge names  five  or\tmore
\n\t      persons  as  composing an\t unlawful  assembly,
\n\t      evidence\t may  nevertheless  show  that\t the\n<\/p><\/blockquote>\n
\t      -unlawful\t assembly  consisted of\t some  other
\n\t      persons as well who were not identified and so
\n\t      not  named.  In such cases, either  the  trial
\n\t      court
\n\t      (1)  [1955] 2 S.C.R. 881.\t (2) [1902]  2\tK.B.\n<\/p><\/blockquote>\n
\t      339.
\n\t      (3) [1962] supp. 3 S.C.R. 848, 858.\n<\/p><\/blockquote>\n
\t       787<\/span><\/p>\n
\t      or  even the High Court in appeal may be\table
\n\t      to  come to the conclusion that the  acquittal
\n\t      of some of the persons named in the charge and
\n\t      tried will not necessarily displace the charge
\n\t      under  s.\t 149 because along with the  two  or
\n\t      three  persons convicted were others who\tcom-
\n\t      posed  the unlawful assembly but who have\t not
\n\t      been  identified and so have not\tbeen  named.
\n\t      In  such cases, the acquittal of one  or\tmore
\n\t      persons  named in the charge does\t not  affect
\n\t      the  validity  of\t the  charge  under  s.\t 149
\n\t      because  on the evidence the court of fact  is
\n\t      able to reach the conclusion that the  persons
\n\t      composing\t the unlawful assembly\tnevertheless
\n\t      were five or more than five.”\n<\/p><\/blockquote>\n
The decisions of this court quoted above thus make it  clear
\nthat where the prosecution case as set out in the charge and
\nas  supported  by  the evidence is to the  effect  that\t the
\nalleged\t unlawful  assembly consists of five or\t more  named
\npersons\t and  no  others, and there is no  question  of\t any
\nparticipation\tby   other   persons   not   identified\t  or
\nidentifiable it is not open to the court to hold that  there
\nwas  an\t unlawful assembly unless it comes to  the  definite
\nconclusion  that  five\tor more of the\tnamed  persons\twere
\nmembers\t  thereof.    Where,  however,\tthe  case   of\t the
\nprosecution and the evidence adduced indicates that a number
\nin  excess of five persons participated in the incident\t and
\nsome  of them could not be identified, it would be  open  to
\nthe court to convict less than five of the offence of  being
\nmembers\t of  the unlawful assembly or convict  them  of\t the
\noffence\t committed by the unlawful assembly with the aid  of
\ns;  149, 1. P. C. provided, it comes to the conclusion\tthat
\nfive  or more persons participated in the incident.   Again,
\nit is clear from these decisions that when a person has been
\nacquitted of an offence, his acquittal will be good for\t all
\npurposes  when the incident in connection with which he\t was
\nimplicated comes up for consideration before
\n788<\/span>
\nthe  High  Court in appeal by a person or persons  who\twere
\ntried along with him and convicted of some offence with\t the
\naid of s. 149, I. P. C. Sunder Singh’s case (1), has  carved
\nout  an exception to this rule to the effect that  the\tHigh
\nCourt  can, under s. 423, Cr.  P. C.  consider\tincidentally
\nthe  question whether the acquitted person was a  member  of
\nthe  unlawful  assembly for the purpose of  determining\t the
\ncase of the appellants before it.  As already pointed out it
\nis  not\t necessary  in\tthis case to  say  whether  such  an
\nexception can be recognised consistently with the  principle
\nin  Plummer’s  case  (2) which has  so\tfar  been  uniformly
\naccepted by this court.\n<\/p>\n
We have had occasion to consider recently in Krishna  Govind
\nPatil  v.  The State of Maharashtra<\/a> (3), the effect  of\t the
\nacquittal of person-. who were tried along with the  persons
\nconvicted  of an offence under s. 302 read with s. 3 t.\t One
\nof us (Subba Rao.  J.) speaking for the court, has observed
\n\t      “It  is  well settled  that  common  intention
\n\t      within  the meaning of the section  implied  a
\n\t      pre-arranged  plan  and the criminal  act\t was
\n\t      done  pursuant to the pre-arranged plan.\t The
\n\t      said plan may also develop on the spot  during
\n\t      the  course of the commission of the  offence;
\n\t      but the crucial circumstance is that the\tsaid
\n\t      plan  must  precede the act  constituting\t the
\n\t      offence.\t If that be so, before a  court\t can
\n\t      convict a person under s. 302, read with s. 34
\n\t      of the Indian Penal Code, it should come to  a
\n\t      definite conclusion that the said person had a
\n\t      prior concert with one or more other  persons,
\n\t      named  or\t unnamed,’ for committing  the\tsaid
\n\t      offence.\t A few illustrations will bring\t out
\n\t      the impact of s.34 on different situations.\n<\/p>\n
\t      (i)   A, B, C and D are charged under s.\t302,
\n\t      read with s. 34 of the Indian Penal Code,
\n\t      (1) [1962] Supp. 2 S.C.R. 654, 663.  (2)[1902]
\n\t      2 K B. 339.\n<\/p>\n
\t      (3 [1964] Vol.  1 S.C.R. 678.\n<\/p>\n
\t       789<\/span><\/p>\n
\t      for  committing the murder of E. The  evidence
\n\t      is  directed to establish that the  said\tfour
\n\t      persons have taken part in the murder.\n<\/p>\n
\t      (2)   A,\tB,  C and D and unnamed\t others\t arc
\n\t      charged under the said sections.\tBut evidence
\n\t      is  adduced  to prove that the  said  persons,
\n\t      along   with   others,   named   or   unnamed,
\n\t      participated jointly in the commission of that
\n\t      offence.\n<\/p>\n
\t      (3)   A, B, C and D are charged under the said
\n\t      sections.\t  But  the evidence is\tdirected  to
\n\t      prove that A, B, C and D, along with 3 others,
\n\t      have jointly committed the offence.\n<\/p>\n
As  regards  the  third illustration a\tCourt  is  certainly
\nentitled  to  come to the conclusion that one of  the  named
\naccused is guilty of murder under s. 302, read with s. 34 of
\nthe Indian Penal Code, though the other three named  accused
\nare  acquitted,\t if it accepts the evidence  that  the\tsaid
\naccused\t acted\tin  concert along  with\t persons,  named  or
\nunnamed,  other than those acquitted, in the  commission  of
\nthe offence.  In the second illustration, the Court can come
\nto the same conclusion and convict one of the named  accused
\nif it is satisfied that no prejudice has been caused to\t the
\naccused\t by  the  defect in the charge.\t But  in  the  first
\nillustration the Court certainly can convict two or more  of
\nthe named accused if it accepts the evidence that they acted
\nconjointly  in\tcommitting  the offence.  But  what  is\t the
\nposition  if  the Court acquits 3 of the  4  accused  either
\nbecause\t it rejects the prosecution evidence or\t because  it
\ngives  the  benefit of doubt to the said  accused?   Can  it
\nhold,  in the absence of a charge as well as evidence,\tthat
\nthough\t the  three  accused  are  acquitted,\tsome   other
\nunidentified persons acted
\n790<\/span>
\n\t      conjointly  along with one of the\t named\tper-
\n\t      sons?   If the Court could do so, it would  be
\n\t      making out a new case for the prosecution : it
\n\t      would  be\t deciding contrary to  the  evidence
\n\t      adduced in the case.  A Court cannot obviously
\n\t      make  out a case for the prosecution which  is
\n\t      not  disclosed  either  in the  charge  or  in
\n\t      regard  to  which\t there is no  basis  in\t the
\n\t      evidence.\t  There must be some  foundation  in
\n\t      the  evidence  that persons other\t than  those
\n\t      named have taken part in the commission of the
\n\t      offence and if there is such a basis the\tcase
\n\t      will be covered by the third illustration.”
\nWhat  has been held in this case would apply also to a\tcase
\nwhere  a person is convicted with the aid of s. 149,  Indian
\nPenal Code instead of s. 34.  Thus all the decisions of this
\ncourt  to  which we have referred make it clear that  it  is
\ncompetent  to a court to come to the conclusion\t that  there
\nwas  an unlawful assembly of five or more persons,  even  if
\nless  than that number have been convicted by it if (a)\t the
\ncharge\tstates\tthat apart from the persons  named,  several
\nother unidentified persons were also members of the unlawful
\nassembly  whose common object was to commit an unlawful\t act
\nand evidence led to prove this is accepted by the court; (b)
\nor that the first information report and the evidence  shows
\nsuch  to be the case even though the charge does  not  state
\nso,  (c) or that though the charge and the prosecution\twit-
\nnesses\tnamed only the acquitted and the  convicted  accused
\npersons\t  there\t is  other  evidence  which  discloses\t the
\nexistence  of named or other persons provided, in cases\t (b)
\nand  (c), no prejudice has resulted to the convicted  person
\nby reason of the omission to mention in the charge that\t the
\nother unnamed persons had. also participated in the offence.
\nNow,  coming  to the Allahabad High  Court  decision  relied
\nupon, it is sufficient to say that the
\n 791<\/span>
\nobservations  made  therein which have been  quoted  earlier
\nappear\tto be in consonance with the principle in  Plummer’s
\ncase  (1),  and\t thus affords support  to  the\targument  of
\nlearned counsel.\n<\/p>\n
Applying the law as set out above, we must find out  whether
\nwhat the High Court has done in this case is right.  In\t the
\nfirst  place,  though it was vaguely stated by some  of\t the
\nwitnesses  examined in the case that 40 or 50  persons\ttook
\npart  in the incident including the 7 persons  mentioned  in
\nthe  first  information\t report and the\t charge\t sheet,\t the
\nprosecution  case throughout has been that only seven  named
\npersons\t  took\tpart  in  the  incident.   Even\t the   first
\ninformation  report  of Deva Singh (P.\tW. 2),\tone  of\t the
\ninjured\t persons, mentions only the seven persons  who\twere
\nplaced\tfor  trial  and no other.  There  is  no  suggestion
\ntherein\t that any other persons took part in  the  incident.
\nThe Court of Session, however, without discussing the  point
\nand  without  finding as to how many  persons  were  members
\nthereof,  has  come  to the conclusion\tthat  there  was  an
\nunlawful  assembly, the common object of which was  to\tdis-
\nmantle the Dochara and assault Laldeo Singh and Deva  Singh.
\nThe High Court has proceeded more or less on the  assumption
\nthat  there was an unlawful assembly, only some\t members  of
\nwhich were put up for trial, four of whom were acquitted and
\nthree  convicted.   It was necessary for the High  Court  to
\nconsider  whether  the statements of some of  the  witnesses
\nthat the unlawful assembly consisted of many more than seven
\npersons are true or whether they should be rejected in\tview
\nof  the\t fact that the first information report\t shows\tthat
\nonly  seven  persons who were named therein,  committed\t the
\noffence.   It had also to consider the further\tquestion  of
\nprejudice  by reason of the defect in the charge.  Upon\t the
\nlaw as stated by this court in Mohan Singh’s case (2) and in
\nother  cases it would have been competent to the High  Court
\nto look into the entire evidence in
\n(1) [1902] 2 K.B. 339.\n<\/p>\n
(2) [1962] Supp. 3 S.C.R. 848, 858.\n<\/p>\n
792<\/span><\/p>\n
the  case, oral and documentary, and consider whether  there
\nwas  an unlawful assembly or not.  But it has not  done\t so.
\nHad the High Court, come to a reasoned conclusion that there
\nwas  an\t unlawful  assembly consisting\tof  more  than\tfive
\npersons, including the appellants and some other persons who
\nwere unidentified and convicted the appellants under s.\t 147
\nand,  with  the aid of s. 149, also of\tsome  other  offence
\ncommitted  by a member or members of the  unlawful  assembly
\nother than the acquitted persons the matter would have stood
\non  a  different footing.  But it has not done\tso.   It  is
\nclear  from its judgment that the High Court was not  satis-
\nfied by the manner in which the case had been dealt with  by
\nthe  Court of Session; but then, it should not have  stopped
\nthere.\tInstead, it should have fully examined the  evidence
\nand come to a definite conclusion as to whether there was an
\nunlawful assembly or not hadstated its reasons for  coming
\nto  such  a conclusion.It should then have  ascertained\t the
\nparticularacts\tcommitted by any member or  members  of
\nthat  assembly in furtherance of the common object  as\talso
\nthe question whether any of the appellants had\tparticipated
\nin  the\t incident.  In the light of its\t findings  on  these
\nmatters\t the  High  Court  should  then\t have  proceeded  to
\nconsider whether all or any of the appellants could be\theld
\nliable vicariously for all or any of the acts found to\thave
\nbeen  committed\t by the unlawful assembly or any  member  or
\nmembers\t thereof  other\t than those  alleged  to  have\tbeen
\ncommitted  by persons whose acquittal has become final.\t  It
\nis  a  matter of regret that the High Court  has  failed  to
\ndetermine  questions  which  it\t was  essential\t for  it  to
\ndetermine.  We, therefore, set aside that judgment and\tsend
\nback the case to the High Court for deciding it afresh.\n<\/p>\n
\t\t      Appeal allowed.\n<\/p>\n
\t\t       Case remanded.\n<\/p>\n
 793<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Ram Bilas Singh & Ors vs The State Of Bihar on 29 January, 1963 PETITIONER: RAM BILAS SINGH & ORS. Vs. RESPONDENT: THE STATE OF BIHAR DATE OF JUDGMENT: 29\/01\/1963 BENCH: ACT: Criminal Trial-Unlawful assembly-Acquittal of accused- Conviction of less than five-Legality of-Indian Penal Code, s. 149. HEADNOTE: The facts alleged […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-230674","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nRam Bilas Singh & Ors vs The State Of Bihar on 29 January, 1963 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/ram-bilas-singh-ors-vs-the-state-of-bihar-on-29-january-1963\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Ram Bilas Singh & Ors vs The State Of Bihar on 29 January, 1963 - 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