Bharwad Mepa Dana and Another vs State of Bombay

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Criminal Appeal No. 72 of 1959

Decision Date: 10 November 1959

Coram: S.K. Das, A.K. Sarkar, M. Hidayatullah

In the matter titled Bharwad Mepa Dana and Another versus State of Bombay, the Supreme Court of India rendered its judgment on the tenth day of November, 1959. The opinion was authored by Justice S K Das, who was joined on the bench by Justices A K Sarkar and M Hidayatullah. The petitioners in the case were Bharwad Mepa Dana and a second unnamed individual, while the respondent was the State of Bombay. The decision was recorded under the citation 1960 AIR 289 and also appeared in the 1960 Supreme Court Reports, second series, page 172. Subsequent citator references included reports such as R 1963 SC 174, R 1968 SC 43, F 1974 SC 323, R 1974 SC 1567, RF 1975 SC 1917, R 1976 SC 1084, R 1976 SC 2207, and MV 1982 SC 1325. The legal issues concerned the criminal trial of murder arising from an unlawful assembly, the applicability of the common-object doctrine, the legality of a conviction based on common intention, the absence of proof as to who delivered the fatal blows, and the effect of sections 34 and 149 of the Indian Penal Code, 1860 (Forty-fifth Year).

The headnote recorded that twelve individuals, including the two appellants, had been charged with forming an unlawful assembly whose common object was to murder three victims. At the first instance, the Sessions Judge acquitted seven of the accused but found five of them guilty under section 302 read with section 149, and under section 302 read with section 34 of the Penal Code. The Judge sentenced the two appellants to death and imposed life imprisonment on the other three convicted persons. On appeal, the High Court set aside the conviction of one of the three other convicted persons but upheld the death sentences of the appellants and the life sentences of the remaining two. The High Court concluded that the unlawful assembly comprised ten to thirteen persons, although the identity of all members except four could not be positively established. The Court held that all members shared the common object and a common intention to kill the victims, and that the killings were committed in furtherance of that common object and intention. The appellants argued that they could not be said to share the common object or intention with unnamed persons or with those already acquitted, and contended that without proof that they themselves inflicted the fatal blows, they could not be held constructively liable under sections 149 or 34 for blows allegedly delivered by unknown individuals. The Court rejected these arguments, stating that the convictions were proper. It observed that even though fewer than five persons were convicted, the High Court could still invoke section 149 to uphold the convictions of the four individuals. The law did not forbid the High Court from finding that the unlawful assembly included the four convicted persons together with some unidentified members, so that the total number of participants exceeded five. In reaching this conclusion, the High Court did not create a new unlawful assembly distinct from that originally charged; rather, it affirmed that the assembly remained the same, even though the precise identities of all its members had not been conclusively established.

The Court noted that the difficulty in the case lay in the fact that the identity of every member of the unlawful assembly had not been positively established. It referred to the authorities in Kapildeo Singh v. The King [1950] F.C.R. 834, Dalip Singh v. State of Punjab [1954] S.C.R. 145 and Nay Singh v. State of Uttar Pradesh A.I.R. 1954 S.C. 457, and held that those decisions applied to the present situation. The Court found no obstacle to the application of section 34 of the Penal Code, because the number of convicted persons was four and there was a clear finding that they shared a common intention with other persons whose identities remained unknown. Even though it was not possible to determine which specific person or persons delivered the fatal blows, the Court explained that once it was established that the murders were committed in furtherance of a common intention shared by all participants, each individual could be held liable for the murder as if he had acted alone. The provision, the Court observed, was intended to address cases where members of a group act to further a shared intention, even when the exact role of each member is difficult to prove. The Court cited Wasim Khan v. State of Uttar Pradesh [1956] S.C.R. 191 in support of this principle and distinguished the earlier case of Prabhu Babaji Navle v. State of Bombay A.I.R. 1956 S.C. 51. The judgment concerned Criminal Appeal No. 72 of 1959, an appeal by special leave from the Bombay High Court’s order dated 2 April 1959 in Confirmation Case No. 2 of 1959 and Criminal Appeal No. 32 of 1959, which arose from the Sessions Judge’s order of 18 February 1959 in Sessions Case No. 18 of 1958. Counsel for the appellants and counsel for the respondent were listed, and the judgment was delivered on 10 November 1959 by Justice S. K. DAS. The appeal involved two appellants, Mepa Dana and Vashram Dana, who had been tried together with ten others for various offences, including murder under sections 302, 149 and 34 of the Penal Code. Of the twelve persons tried, seven were acquitted and five were convicted; the two appellants received death sentences for murder under sections 302 read with 149 and 34, while the remaining three convicted individuals were sentenced to life imprisonment. No separate sentences were imposed for the minor offences alleged. All convicted persons appealed to the Bombay High Court, and the Sessions Judge also referred the death sentences of the two appellants for confirmation under section 374 of the Code of Criminal Procedure; both the appeal and the reference were heard together.

By the judgment pronounced on 2 April 1959, the High Court affirmed the convictions of four of the persons originally convicted at the trial, namely the two appellants and the two individuals who had been recorded as accused numbers 1 and 11 in the Sessions Court proceedings. The same judgment allowed the appeal of accused number 8 and consequently set aside both the conviction and the sentence that had been imposed on him. As a result of that decision, the total number of persons standing convicted was reduced to four. The Court points out this circumstance because one of the submissions raised by the appellants concerning their convictions under section 302 read with section 149 focused on the fact that the number of convicted persons had been lowered by the appellate court. Earlier it had been stated that the learned Sessions Judge had tried merely twelve accused. However, the prosecution case, which will be described in greater detail presently, alleged that there were in fact thirteen persons who formed the unlawful assembly that committed the offences in pursuit of the common object of the assembly or in furtherance of the common intention of all. One of those thirteen was a juvenile who was tried by a Juvenile Court under the Saurashtra Children Act, 1956; consequently, only twelve accused appeared before the Sessions Judge. The record before this Court does not disclose the outcome of the juvenile trial, although the appellants have claimed that the juvenile was acquitted. It is therefore necessary to set out the prosecution case against the twelve persons who were tried at the Sessions Court. The case concerned a village called Nani Kundal, situated within the police station jurisdiction of Babra in the district of Madhya Saurashtra. In that village lived a man named Shavshi, who had four sons named Kurji, Harji, Mitha and Virji. Also residing in the same village was one Dana Bharwad, identified as accused number 1 in the trial, who had three sons named Amra, Mepa and Vashram; the latter two are the appellants before the Court. At the beginning of 1958 Amra was murdered, and Harji and Mitha were subsequently tried for that murder by the learned Sessions Judge of Rajkot, but they were acquitted on 14 May 1958. That acquittal caused great dissatisfaction to Dana and to his two sons, Mepa and Vashram. On 14 July 1958 Harji, Mitha and Virji went to a location west of the village where a cluster of huts was situated, a place that lay north of another cluster of huts belonging to Dana. While the three brothers were engaged in some agricultural operations, they were attacked by a mob of persons led by the two appellants, who were armed with axes. Harji was first pounced upon and felled by blows, yet he managed to rise and fled toward the village. At the same time Mitha and Virji also ran, more or less in the same direction, attempting to escape the assault.

After the three brothers Harji, Mitha and Virji were attacked, they were pursued by the mob. Kurji, the fourth brother, and other relatives of Shavshi rushed to the scene. Kurji arrived first, and according to the prosecution’s case he was struck down by the two appellants together with other members of the unlawful assembly. He died immediately at the spot. Harji was then assaulted a second time, fell down and also died on the spot. Finally Mitha was surrounded, assaulted, fell down and died at the same place. When the mother of the four brothers—Kurji, Harji, Mitha and Virji—learned that three of her sons had been killed, she went to the place of the occurrence and afterward proceeded to the shop of Kalidas, a prominent resident of the village. There she encountered Arjan, who served as the village chowkidar. Arjan was informed of the events and he proceeded to the village of Barwala, where a police out-post was located. He reported the incident to Anantrai, the officer in charge of that out-post. Anantrai prepared an occurrence report and forwarded it to the officer in charge of Babra Police Station. This report constituted the first official information about the case. Babra lies at a distance of about thirteen or fourteen miles from the village of Nani Kundal. The Sub-Inspector of Police arrived at Nani Kundal at approximately ten forty-five in the evening. An investigation was subsequently conducted, and thirteen accused persons were committed to trial.

The defendants, including the two appellants, argued that they had been falsely implicated because of enmity and denied any participation in the murders of Kurji, Harji and Mitha. Dana, identified as accused number one, stated that on the day of the incident his son Mepa had been pursued and attacked by Harji, Mitha and Kurji. Dana said he intervened to protect his son, sustained an injury to his left hand, and then fled the scene, expressly denying any knowledge of the assaults that resulted in the deaths of Kurji, Harji and Mitha. The prosecution called ten eyewitnesses; seven of these were relatives of Shavshi and three—Nagji, Bhura and Dada—were independent persons. The learned Sessions Judge largely accepted the testimony of these ten witnesses but held that the statements of Shavshi’s relatives could not be relied upon unless they were supported by independent corroboration or other circumstances. On that basis, the Judge found that the three independent witnesses corroborated the relatives’ evidence concerning four of the five accused, namely the two appellants and accused numbers one and eleven. Regarding accused number eight, the Judge relied on the discovery of an axe stained with human blood as a corroborative circumstance. Consequently, the Judge convicted the two appellants together with accused numbers one, eight and eleven. The High Court, however, expressed dissatisfaction with the evidence against accused number eight.

The Court held that the evidence presented by the prosecution left no doubt that more than five individuals were present at the scene of the crime, although the identities of all participants could not be ascertained except for accused numbers 1, 2, 3 and 11. The Court observed that the prosecution’s material demonstrated that between ten and thirteen persons had taken part in the offence. Consequently, the Court concluded that these participants had formed an unlawful assembly. The Court further noted that the prosecution evidence clearly showed that the common object of the assembly was to commit murder and that the participants entertained a common intention to kill the victims. The Court added that there was also evidence that each of the participants was carrying a heavy axe. On the basis of these findings, the Court stated that the offences punishable under sections 147, 148, 302 read with 149 and 302 read with 34 of the Indian Penal Code had been committed and that accused numbers 1, 2, 3 and 11 were liable to be convicted for those offences.

The Court then turned to the arguments advanced on behalf of the appellants. The principal contention was that the conviction of the appellants for murder, relying on either section 149 or section 34 of the Indian Penal Code, was legally untenable and could not be sustained. Counsel for the appellants submitted that while the accused could be held liable for the individual assaults proven against them, the circumstances of the case did not support a conviction for the murder charge. This line of argument was developed in two distinct ways. First, counsel pointed out that the prosecution had put forward a definitive case that thirteen named persons formed an unlawful assembly whose common object was to kill the three brothers previously identified. Of those thirteen, twelve were tried before the learned Sessions Judge, who acquitted seven, and the High Court subsequently acquitted one more, leaving only four convicted persons. The High Court, however, found that more than five persons—specifically between ten and thirteen—had participated in the offence. Counsel argued that this finding implied that the four convicted persons could not, by themselves, constitute the unlawful assembly required under section 149, and that the Court could not lawfully infer the presence of additional, unspecified participants who had never been tried on the same indictment and about whom the prosecution had provided no charge or evidentiary reference. Moreover, counsel maintained that the acquitted individuals, having been cleared of all charges, could not be deemed members of the unlawful assembly, as their acquittal legally precluded such a classification. Hence, counsel contended that the High Court’s reliance on a purported new unlawful assembly, comprising the four convicted persons together with unspecified individuals, was impermissible, rendering the murder conviction on the basis of section 149 legally defective.

In the view of the counsel, the acquittal of the persons who were alleged to be members of an unlawful assembly meant that, for all legal purposes, those persons could not be considered members of any unlawful assembly; the legal effect of an acquittal was that they were not members of such an assembly. Accordingly, the counsel argued that the conviction of the appellants for murder on the basis of section 149 of the Indian Penal Code was legally unsound. This argument constituted the first of the two principal lines of attack that the counsel advanced. The second line of attack was broader in scope and embraced both section 149 and section 34 of the Indian Penal Code. The counsel pointed out that, although the factual finding was that the two appellants had assaulted Harji and Kurji with axes, the judgment did not specify which individual had delivered the fatal blows to the brothers. The record showed that Kurji had sustained four ante-mortem injuries – three on the neck and head and one on the arm – and that his death resulted from a depressed fracture of the right temporal bone together with a fissured fracture of the parietal and occipital bones. Harji, on the other hand, had incurred as many as thirteen ante-mortem injuries, including a fracture of the skull. Regarding Mitha, the medical report described a fracture of the left frontal bone of his head, a crushed fracture of the nose and the left orbital socket, and fractures of the maxillary bones on both sides, which the counsel summarised as the practical crushing of Mitha’s skull.

The counsel’s contention was that, in the absence of any finding that the appellants or the other convicted persons alone had caused the described fractures by the blows they delivered, the appellants could not be held constructively liable under either section 149 or section 34 of the Indian Penal Code for blows that might have been inflicted by some unknown person. The counsel argued further that, even if one assumed that the four convicted persons shared a common intention to kill the three brothers, none of them could be liable under section 34 of the Indian Penal Code for the acts of an unknown person who might have delivered the fatal blows unless the prosecution had alleged and proved that the criminal act was carried out in furtherance of the common intention of the convicted persons together with those unknown individuals. Moreover, when thirteen named persons were said to have committed murder in furtherance of a common intention, the prosecution could not, after the acquittal of nine of those persons, simply conclude that the remaining four had committed the murder merely on the basis of a common intention, without any proof that any of them had actually delivered the fatal blows. The counsel noted that the two arguments overlapped to some extent, with the first argument applying specifically to the charge under section 149 of the Indian Penal Code, and the second argument extending to both sections 149 and 34.

The Court observed that the arguments concerning sections 149 and 34 of the Indian Penal Code would be examined later, but first it was essential to point out that much of the confusion in the case arose because the two charges had been conflated. It noted that the distinction between section 149, which deals with unlawful assembly, and section 34, which relates to acts done by several persons in furtherance of a common intention, had been clarified in several earlier decisions of this Court. Although the Court did not feel it necessary to repeat the detailed distinction, it stressed that the difference should have been kept in mind and that the two charges should not have been merged into a single allegation as occurred in the present proceedings. The Court further stated that, despite this procedural irregularity, no prejudice resulted to the appellants and that they were afforded a fair trial.

Turning to the claims raised on behalf of the appellants, the Court first set out the factual findings of the High Court, which it quoted verbatim. The High Court had found that (i) there was no doubt that more than five persons formed the unlawful assembly, although the identities of all participants except the four who were convicted had not been established; (ii) the total number of persons constituting the unlawful assembly was between ten and thirteen; (iii) all ten to thirteen persons shared the common object and common intention of killing Kurji, Harji and Mitha; and (iv) the killing was carried out in prosecution of that common object and in furtherance of the common intention of the entire assembly, with the appellants playing a major role in the assault on Kurji and Harji. The Court then asked whether, in view of these findings, the High Court could be said to have applied section 149 incorrectly because only four persons were convicted. The Court answered negatively, explaining that the High Court had never held that the unlawful assembly consisted solely of the four convicted individuals together with some of the acquitted persons. The High Court expressly noted that the identities of all members were not established except for accused numbers 1, 2, 3 and 11. Consequently, the High Court’s finding meant that the unlawful assembly comprised the four convicted persons and a number of other unidentified individuals, bringing the total to ten to thirteen members. On that basis, the Court concluded that it was unnecessary to discuss the legal effect of the acquittal of the nine other accused, other than to acknowledge that the acquittal stood for all purposes and that none of those nine could now be considered to have participated in the crime, thereby leaving only the four convicted individuals potentially liable under section 149.

In this case, the Court observed that the four convicted persons could be held guilty under section 149 of the Indian Penal Code. However, the Court noted that this point did not settle the entire dispute. The law did not forbid the High Court from concluding that the unlawful assembly was composed of the four convicted individuals together with some unidentified persons, so that the total number of participants exceeded five. The Court reiterated an earlier statement that the ability to reach such a conclusion depended entirely on the facts of each case and on the evidence presented; it was a factual issue to be decided on the record of proof. Counsel for the appellants argued, as though the matter were purely legal, that the High Court should not have arrived at its finding because the prosecution’s case alleged that thirteen named persons formed the unlawful assembly. The Court was unable to accept that argument. It held that there was no legal prohibition of the sort suggested by the counsel, although the Court recognized that in certain factual situations it might be impossible to find that fewer than five convicted persons, combined with unspecified persons not named in the charge, could constitute an unlawful assembly. Setting that consideration aside, the Court emphasized that any mere error, omission or irregularity in the charge would not, as a matter of law, invalidate the finding in the present case. Even if the finding were said to go beyond the express terms of the charge, the appellants had failed to demonstrate any prejudice arising from that extension; in the absence of such prejudice, no complaint could now be made about any defect in the charge. The appellants further submitted that the High Court’s finding created a new unlawful assembly distinct from that alleged by the prosecution. The Court rejected this view as well, holding that the assembly remained the same assembly; the difference lay only in the fact that the identity of all its members had not been clearly established, although the number of members had been determined to be more than five. The Court observed that it is not unusual for witnesses to misidentify individuals when a large number of persons are involved in the commission of a crime, and that such questions of identity are factual matters, not questions of law. The Court noted that the appellants relied heavily on passages from Archbold’s Criminal Pleading, Evidence and Practice (Thirty-fourth edition, pages 200-201), which state that where several prisoners are indicted together, a jury may find some guilty and others acquitted, and vice-versa; however, if several persons are indicted for a riot and the jury acquits all but two, those two must also be acquitted unless the indictment specifically charges and proves that they committed the riot together with some other person not tried on that indictment. The Court found this reliance misplaced in the present circumstances.

In Hawkins’s Pleas of the Crown (2 Hawk. c. 47, s. 8) it is observed that when an indictment charges a riot involving three or more persons, a verdict that acquits all the accused except two and finds those two guilty is repugnant and void, and similarly when an indictment charges a conspiracy, a verdict that acquits all except one and finds that one guilty is also repugnant and void, unless the indictment expressly charges the convicted persons with having participated in the riot or conspiracy “simul cum aliis juratoribus ignotis.” The reason for this rule is that otherwise the convictions would amount to finding the defendants guilty of an offence that could not logically exist; a riot cannot exist with only two participants, and a conspiracy cannot exist without at least two partners. The commentary further notes that there is general agreement that if twenty persons are indicted for a riot or a conspiracy, a verdict finding any three guilty of the riot or any two guilty of the conspiracy is valid. The Court, however, says that these observations do not assist the appellants in the present matter because they pertain to the effect of a common-law jury verdict, which may be general, partial, or special. In a special verdict the jury determines the factual findings and leaves the legal interpretation to the court. Accordingly, if a jury were to find only one individual guilty of a conspiracy and only two individuals guilty of a riot, it would be effectively declaring the defendants guilty of offences that could not have been committed, since a riot requires more than two participants and a conspiracy requires at least two conspirators. The observations therefore apply only to situations where the jury’s verdict does not, and cannot, imply the presence of additional participants beyond the convicted individuals. This point is reinforced by the statement that when a large number of persons—such as twenty—are indicted, a conviction of three for a riot or two for a conspiracy is permissible. The legal position is succinctly expressed in Harris’s Criminal Law (Nineteenth edition, p. 474), which states that when several persons are charged in a single indictment, the jury may convict some and acquit others, but in certain cases the acquittal of one may render the conviction of another impossible; for example, in a conspiracy at least two persons must be convicted, and in a riot at least three, unless the convicted persons are charged with having acted together with other persons not included in the indictment. The Court reiterated this principle in Topan Das v. The State of Bombay, applying the same rule that a conviction must be consistent with the statutory requirement that a conspiracy involve two or more persons.

In the reported decision at 2 S.C.R. 881, the Court observed that the definition of criminal conspiracy contained in section 120-A of the Indian Penal Code mandates the participation of at least two persons in the unlawful agreement; a solitary individual cannot be convicted of criminal conspiracy because a person cannot conspire with himself. The Court referred to a case in which four named individuals had been charged with criminal conspiracy, yet three of them had been acquitted of that charge. The Court distinguished that earlier case from the present matter by noting that, in the earlier case of Topan Das, after the acquittal of three of the four accused, the evidence could not establish the existence of any partner to the alleged conspiracy. By contrast, in the case presently before the Court, the finding was that between ten and thirteen persons had formed an unlawful assembly with the requisite common object, although the identities of only four of those participants had been positively established.

The point of contention had earlier arisen in decisions of the Allahabad High Court, namely Harchanda v. Rex (1) and Gulab v. State (2), the latter decision having over-ruled the former. The judgment in Gulab’s case proceeded on the premise that an appellate court could determine that certain acquitted persons had, in fact, been wrongly acquitted; nevertheless, such a court could not set aside those acquittals in the absence of an appeal by the State Government—a procedural nuance that the Court deemed unnecessary to elaborate further in the present context.

There were two additional authorities relevant to the discussion, one emanating from the Federal Court and the other from this Court. In Kapildeo Singh v. The King (3), the prosecution alleged that sixty to seventy men constituted the unlawful assembly, while the appellant had been charged along with thirteen other persons for offences committed in furtherance of the assembly’s common objective. The appellant was convicted, but the thirteen co-accused were acquitted because they had not been properly identified. A contention raised before the Federal Court was that, where all fourteen persons had been charged with rioting and thirteen of them had been acquitted, it could not be held that an unlawful assembly of five or more persons, sharing a common object to commit an offence, existed. Addressing this contention, the Federal Court observed at pages 837-838 that the crucial question in a case under section 147 is whether an unlawful assembly, as defined in section 141 of the Indian Penal Code, comprised five or more persons. The identity of the individuals forming the assembly pertains to the determination of each accused’s guilt, and even if the court can convict fewer than five persons, section 147 remains applicable provided that, on the basis of the evidence, the court is able to conclude that the person or persons found guilty were members of an assembly of five or more persons, whether those members were known or unknown, identified or unidentified.

The Court observed that a conviction under section 149 of the Indian Penal Code required that the persons found guilty be members of an unlawful assembly consisting of five or more individuals, whether those individuals were known or unknown, identified or unidentified. In the case before the Court, such a finding was established, and the Court considered that this determination resolved the issue. The Court applied the same principle to the present facts and rejected the argument put forward by counsel for the appellant, which relied on a distinction drawn from Kapildeo’s case (1), where the prosecution had alleged the presence of sixty or seventy men in the unlawful assembly. The Court held that this distinction did not alter the legal position. The same view had previously been expressed by this Court in Dalip Singh v. State of Punjab (2), where it was stated: “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. A finding that three of them ‘may or may not have been there’ betrays uncertainty on this vital point and it consequently 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 where judges may conclude that although five were unquestionably present, the identity of one or more is in doubt. In such a case, a conviction of the remaining persons with the aid of section 149 would be valid. But if (1) [1950] F.C.R. 834. (2) [1954] S.C.R. 145,150. that is the conclusion, it is incumbent on a court, especially in a murder case where sentences of transportation in no fewer than four cases have been enhanced to death, to state so with unerring certainty.” The Court reiterated this view in Nar Singh v. State of Uttar Pradesh (1). The Court reiterated its earlier finding that, in the present matter, there was a clear and certain determination that the unlawful assembly comprised more than five persons, although the identity of only four could be positively established, and that the killing was committed in furtherance of the common object of the entire assembly. Consequently, the Court found no substantial obstacle to applying section 149 of the Indian Penal Code in this case. Regarding the application of section 34 of the Indian Penal Code, the Court held that the legal position was clear and unambiguous. Four individuals had been convicted of murder on the basis that they, together with others, shared the common intention to kill three brothers, namely Kurji, Barji and Mitha. The appellants had participated in the assault in furtherance of that common intention, and there was no dispute that the common intention had been realized by the murders. Since the number of convicted persons exceeded one and met the statutory requirement, the Court saw no difficulty in applying section 34. Counsel for the appellant argued that “we do not know who gave the fatal blows.” The Court accepted that while the precise identity of the person who delivered the fatal blows might be unknown, the requirement of section 34 was satisfied because the criminal act was done in furtherance of the common intention of all participants.

In this case the Court observed that the identity of the person who delivered the fatal blows could not be established, but once it is shown that a criminal act was carried out in furtherance of the common intention of the whole assembly, each participant is liable for that act as if he had performed it himself. Section 34 is designed for situations where it is difficult to separate the individual acts of members of a group acting on a shared intention, or to determine which member performed which part. The principle underlying the section is participation in an act with the common intention of committing a crime; once such participation is proved, section 34 becomes applicable. Accordingly, the Court found no difficulty in applying section 34 to the present facts. Counsel for the respondent suggested that some of the persons who had been acquitted might have delivered the fatal blows, and because they were acquitted the appellants could not be held constructively liable for those blows. The Court rejected this argument, holding that the acquittal of certain individuals is final and it is not permissible to invoke their alleged conduct to sustain a charge against the appellants. The Court therefore proceeded on the basis that the acquittal stood for all purposes and could not be used to assert that the acquitted persons had inflicted the fatal wounds. The Court then referred to two earlier decisions of this Court concerning section 34. In Wasim Khan v. The State of Uttar Pradesh (1) the High Court had found that the appellant, together with two others, committed robbery and murder, while the two co-accused were acquitted. The Court there held that the appellant could still be convicted under section 34 despite the acquittal of the co-accused, reducing the number of participants to one. In the present case, however, four persons have been convicted of acting in furtherance of the common intention, which makes the application of section 34 stronger. In Prabhu Babaji Navle v. The State of Bombay (2) the appellant was charged under section 302 read with section 34 along with four others who were acquitted. The Court observed that when those four were acquitted the element of a shared common intention disappeared, and conviction under section 34 could not be sustained unless a common intention with other unknown persons could be proved. The Court distinguished that decision because, unlike the Navle case, the present case retains four convicted participants, each possessing the requisite common intention.

The Court held that a person cannot be convicted under section thirty-four unless he shares a common intention with the actual murderer; consequently, without such a shared intention, conviction under that provision is impossible. It was noted that, although an alternative charge could have been framed on the basis that the accused shared a common intention with another person or with persons whose identities were unknown, even that alternative would require proof of the common intention either by direct evidence or by a legitimate inference. The Court found that, once the co-accused were eliminated from consideration, the evidence could not support a conclusion that the appellant shared a common intention with anyone other than the four persons originally identified, because the essential allegation and the bulk of the evidence centered on the appellant’s joint intention with those four individuals and not with unknown others.

The Court distinguished the earlier decision on two grounds. First, in that precedent the number of participants fell below the statutory requirement for establishing a common intention. Second, the facts of that case did not permit a finding that the appellant shared a common intention with any other person, known or unknown. By contrast, in the present case four persons were convicted, and each of them possessed the requisite common intention. Moreover, the findings specifically indicated that they had shared that intention with additional participants whose identities were not established. Accordingly, the Court concluded that the earlier decision in Prabhu Babaji Navle did not bind it.

Turning to the question of sentence, counsel for the appellants argued for a lesser term and advanced three reasons: that the appellants’ brother Amra had been murdered earlier in the same year; that the appellants’ father had also been convicted but was not sentenced to death, an outcome that might have influenced the appellants; and that there was no finding that the appellants caused the fatal injuries. After examining the evidence, the Court determined that the appellants had played a leading role and, with respect to Kurji and Harji, had taken a major part in assaulting them with heavy axes. The High Court, having carefully considered the appropriate punishment, had concluded that, in view of the enormity of the offence—three pre-meditated, cold-blooded murders—and the significant part played by the appellants, imposing a lesser sentence would not be justified. The Court found no compelling reason to depart from the High Court’s assessment or to interfere with the sentence. Consequently, the appeal was dismissed in its entirety.