Ram Bilas Singh and Ors vs The State Of Bihar
Rewritten Version Notice: This is a rewritten version of the original judgment.
Court: Supreme Court of India
Case Number: Criminal Appeal No. 73 of 1961
Decision Date: 29 January 1963
Coram: MUDHOLKAR, J.
In the case titled Ram Bilas Singh & Ors versus The State of Bihar, the Supreme Court of India delivered its judgment on 29 January 1963. The petition was filed by Ram Bilas Singh and others, and the respondent was the State of Bihar. The matter concerned criminal law, specifically the issue of an unlawful assembly, the acquittal of certain accused persons, the conviction of fewer than five persons, and the legality of applying section 149 of the Indian Penal Code.
The prosecution alleged that the first appellant transported, in a truck, a crowd of forty to fifty individuals to the site where the incident occurred. This crowd included the two other appellants and four additional persons who were later acquitted by the trial court. The first appellant, who was armed, discharged a firearm, striking Laldeo Singh in the chest and causing him to fall. Subsequently, none of the four acquitted persons fired their weapons, yet another shot from an unknown source again hit Laldeo Singh. A further shot, fired by one of the acquitted individuals, struck Laldeo Singh a second time, resulting in his instantaneous death. The first appellant also fired two rounds at Deva Singh, wounding him in the thigh. The remaining two appellants, together with four of the seven persons charged, assaulted Deva Singh with lathis.
The trial court convicted the appellants under section 304 part II in conjunction with section 149 of the Indian Penal Code. On appeal, the High Court modified the conviction to section 326 read with section 149, while retaining convictions under sections 147 and 426 of the same code.
Before the Supreme Court, it was argued that the High Court could not have found an unlawful assembly involving the appellants because there had been no appeal against the acquittal of the four persons who were alleged to form part of that assembly. Consequently, it was contended that the appellants could not be held liable for the acts of other members of the alleged assembly, and that an accused person could not be held vicariously responsible for the act of a person who had been acquitted. The Court held that, even if the fatal injuries to Laldeo Singh were caused by one of the four acquitted individuals, the High Court was not entitled to attribute liability to any of the appellants for that act by invoking section 149 of the Indian Penal Code.
Further, the Court explained that legal authorities permitted a court to conclude that an unlawful assembly of five or more persons existed and to convict fewer than that number for the offence, provided certain conditions were satisfied. One condition was that the charge must state that, besides the persons specifically named, several other unidentified individuals were also members of the unlawful assembly sharing the common object of committing an unlawful act, and that the evidence presented supported this finding and was accepted by the court. Another condition was that the first information report and the evidence indicated the existence of such additional participants, even if the charge itself did not expressly mention them.
The Court explained that a charge could still be deemed to disclose the participation of additional persons even when the charge itself did not expressly mention them, provided certain conditions were satisfied. First, it could be shown that although the charge omitted reference to other individuals, the evidence demonstrated their involvement. Second, the charge and the prosecution witnesses might name only the individuals who were acquitted or convicted, yet other evidence could reveal the presence of named or unnamed persons, as long as in such circumstances no prejudice was caused to the convicted individual by the failure to mention those other participants in the charge. The Court stressed that the omission must not have resulted in any disadvantage to the accused, and that the existence of additional participants could be inferred from the totality of the evidence.
The Court then referred to a series of authorities to support this principle. These included Harchandra v. Rex, I.L.R. (1951) 2 All. 62, which had been approved, as well as To pandas v. State of Bombay, [1935] 2 S.C.R. 881; R. v. Plummer, [1902] 2 K.B. 339; Bharwad Mepa Dana v. State of Bombay, [1960] 2 S.C.R. 172; Kartar Singh v. State of Punjab, [1962] 2 S.C.R. 395; Dalip Singh v. State of Punjab, [1954] S.C.R. 145; Sunder Singh v. State of Punjab, [1962] Supp. 2 S.C.R. 634; Mohan Singh v. State of Punjab, [1962] Supp. 3 S.C.R. 848; and Krishna Govind Patil v. State of Maharashtra, [1964] Vol. 1 S.C.R. 678. Each of these decisions was cited to illustrate the circumstances under which a court could lawfully convict individuals despite the charge not expressly naming every participant.
In addition, the Court held that the High Court had failed to address several material questions that were essential for properly deciding the case. Specifically, the High Court had not thoroughly examined the evidence to reach a definite conclusion on whether an unlawful assembly existed that included persons other than those who had been acquitted. Moreover, the High Court had not determined the precise act or acts carried out by any member or members of that alleged assembly in furtherance of the common object, nor had it ascertained whether any of the appellants had taken part in the incident in question. The omission of these inquiries, the Court observed, left the factual matrix insufficiently explored and precluded a sound legal determination.
The judgment proceeded to set out the procedural posture of the appeal. The matter was Criminal Appeal No. 73 of 1961, filed by special leave from the judgment and order dated 3 November 1960 of the Patna High Court in Criminal Appeal No. 326 of 1958. Counsel for the appellants comprised three advocates, while the respondent was represented by two counsel. The appeal was heard on 29 January 1963, and the judgment was delivered by Justice Mudholkar. The appeal sought to challenge the High Court’s alteration of the appellants’ conviction under section 304, Part II, read with section 149 of the Indian Penal Code, converting it into a conviction under section 326 read with section 149, while the sentences for those offences were left unchanged. The High Court’s affirmation of convictions under sections 147 and 426, together with the associated sentences, was also upheld.
The prosecution case, as outlined by the Court, involved a dispute over a dochara in the village of Dihara. The dispute pitted Ram Bilas Singh of Shahpore and his two sons, Ram Naresh Singh and Dinesh Singh, who were the appellants, against Deva Singh (identified as PW 2) and his brothers. On 22 April 1957, at approximately nine o’clock in the morning, Deva Singh, together with his brother Laldeo Singh—the deceased—and two other individuals, Dhunmun Singh (PW 4) and Dasain Hajam, were seated in the dochara. The factual narrative stops at this point, setting the scene for the events that led to the subsequent violence and the legal questions before the Court.
According to the trial record, appellant No. 1 Ram Bilas Singh arrived at the site in a truck accompanied by a crowd estimated to contain forty to fifty persons. The group included the other two appellants and four additional individuals who were later acquitted by the trial court. Ram Bilas Singh is described as having discharged a firearm that he was carrying; the first bullet struck Laldeo Singh in the chest, causing him to fall, although he subsequently rose again. After this, Ramdeo Singh—who was also acquitted by the trial court—fired his own gun, and his shot again hit Laldeo Singh in the chest, causing him to collapse a second time. Thereafter, Ram Bilas Singh Gumasta of Dihara—another person later acquitted—fired a second round from his weapon, this time striking Laldeo Singh in the abdomen and resulting in Laldeo’s instantaneous death. The record further states that Ram Bilas Singh discharged two additional shots aimed at Deva Singh, both of which struck Deva Singh’s right thigh. In the meantime, the two other appellants, Ram Naresh Singh and Dinesh Singh, are said to have struck Deva Singh with lathis, causing him to fall to the ground. Following these assaults, the assembled mob proceeded to dismantle the dochara, demolishing its mud pillars; the demolition caused the thatched roof of the structure to collapse. After accomplishing this objective, the mob left the scene, taking with them a palang, a bamboo cot, two quilts, one lantern and one garansa. The incident attracted a number of villagers to the spot, among them Jagdish Singh, Bhagwat Singh (now deceased) and Ajodhya Singh. After a report of the disturbance was lodged, police arrived, conducted an inquest‑panchnama on the body of Laldeo Singh and followed the standard investigative procedures. A “starch” was subsequently made for the seven accused persons, including the appellants, but locating and arresting them required considerable time. Eventually, the accused were presented before a magistrate, who committed them to trial on charges under section 148, section 302 read with section 149 and section 426 of the Indian Penal Code. Specifically, Ram Bilas Singh, Ramdeo Singh and Ram Bilas Singh Gumasta of Dihara were charged under section 302 for the murder of Laldeo Singh; Ram Bilas Singh also faced a charge under section 307 for attempting to murder Deva Singh; and Ram Naresh Singh and Dinesh Singh were charged under section 323 for assaulting Dhunmun Singh (PW 4). The Sessions Court acquitted both Ram Bilas Singh and Ramdeo Singh of the section 302 offence, and it acquitted all seven accused of the offense under section 302 read with section 149. Nevertheless, the court convicted the three appellants of the offense under section 304, second part, read with section 149, as well as under sections 147 and 426, while it acquitted appellants two and three of the charge under section 323.
In this case, the defence of the three appellants was that Ram Bilas Singh possessed the dochara and that it was Laldeo Singh and Deva Singh who threatened to destroy the dochara. Accordingly, the defence claimed that Laldeo Singh and Deva Singh had led a mob of about fifteen to twenty persons, each carrying various weapons, to the place of the incident on the day in question. The defence further alleged that during the confrontation Laldeo Singh and Deva Singh brandished their farisis and gandasas, while other members of their group used lathis and spears, causing injuries to four persons who were on the side of the appellants. The defence asserted that, in self‑defence, a man named Ram Lakhan Singh, who later died, discharged a firearm and then fled. The shot, according to the defence, struck both Laldeo Singh and Deva Singh. As a result of the injuries, Laldeo Singh is said to have collapsed and died, after which the mob dispersed. Both the trial court and the appellate court rejected the appellants’ claim that they possessed the dochara and that Laldeo Singh and Deva Singh were the aggressors. Moreover, counsel for the appellants, identified as Mr Sethi, did not attempt to contest that finding. Nonetheless, Mr Sethi argued that because the appellants had been acquitted of the offence under section 302 read with section 149 of the Indian Penal Code, they could not be convicted. He added that the appropriate provision was section 326 read with section 149. He further added that appellant No 1 had also been acquitted of the offences under sections 302 and 307, reinforcing his contention. Counsel further observed that the prosecution’s charge sheet named seven persons.
The list included the three appellants before the Court—Ram Bilas Singh Gumasta of Dihara, Sudarshan Singh, son of Ram Bilas Singh Gumasta, Ramdeo Singh, and Sakal Singh, son of Raghoo Singh. Counsel contended that, of these seven, four had been acquitted, and that the remaining three could not be considered members of an unlawful assembly. Consequently, counsel submitted that the three could not be convicted under section 147 or any other offence relying on section 149, and that the trial court was only competent to punish each individual for his own acts. He further argued that the trial court was only competent to punish each individual for his own acts. Counsel further maintained that without overturning the acquittals of the four alleged associates, no fact could be established that an unlawful assembly existed. He added that, because such an assembly could not be proved, the appellants could not be held liable for the acts of other members. Finally, counsel argued that an accused cannot be held vicariously responsible for the act of a person who has been acquitted. Thus, even assuming that the fatal injuries to Laldeo Singh were caused by one of the four acquitted persons, the High Court could not hold any of the appellants liable under section 149.
In this matter, counsel for the accused relied upon a passage from the judgment of Justice Agarwala in the case of Harchanda v. Rex. The passage states that in a criminal trial the burden of proof always rests on the prosecution, which must establish the accused’s responsibility for the alleged crime. The judgment further observes that, because there is no appeal against the acquittal of the other five accused, and because the court cannot interfere with the findings of the learned Sessions Judge as far as those accused are concerned, it is not possible to hold either Durga Das or Sukhbir responsible for inflicting the incised wounds. Moreover, the prosecution did not allege the presence of an unknown person wielding a sharp‑edged weapon alongside the accused; consequently the court cannot attribute the wounds to such an unknown individual. The judgment concludes that, when the prosecution evidence is taken together with the Sessions Judge’s findings, the prosecution is unable to explain how the incised wounds were caused, and therefore, in the opinion of the judge, the accused cannot be held constructively liable for those wounds. Counsel cited this reasoning to support the view that liability under section 149 of the Indian Penal Code could not be imposed on the present appellants.
The High Court, in the judgment that is presently before this Court, observed that the deceased Laldeo Singh had been killed by a shot that, according to the High Court’s assessment, was fired by Ram Bilas Singh Gumasta, an individual who had been acquitted by the Sessions Court. The High Court’s observations, quoted in full, state that the trial court appeared to be heavily biased in favour of Ram Bilas Singh of Dihara, and consequently dismissed, without disbelieving the evidence, the possibility that Laldeo Singh might have been killed by the third shot fired by Rambilas Singh of Dihara. The High Court noted that it is admitted that both Rambilas Singh and Ramdeo Singh each possessed a licensed firearm with an empty cartridge. These firearms, together with the cartridges recovered by PW 21 at the scene, were examined by a firearms expert. The trial court, according to the High Court, explained away this strong and unimpeachable piece of forensic evidence, which supported the witnesses’ version that Rambilas Singh of Dihara had discharged a shot from his gun, on a very flimsy basis.
Further, the High Court highlighted that the ballistic expert’s testimony had been disregarded by the Sessions Court on tenuous grounds. The essential point drawn by the High Court is that it concluded the fatal shot which caused Laldeo Singh’s death was fired by a person who had been acquitted. If the view expressed by the Allahabad High Court is correct, then it follows that the High Court, before which the acquittal of Rambilas Singh Gumasta had not been challenged, was not authorised to revisit the evidence concerning him and declare that he was responsible for the death of Laldeo Singh.
The Court noted that the decision of the Allahabad High Court would be examined later, but first it turned to several earlier decisions of this Court that had been cited during the arguments. In the case of Topandas v. State of Bombay, reported in the second volume of the 1955 Supreme Court Reports at page 881, this Court held that when four named individuals are charged with criminal conspiracy under section 120‑B of the Indian Penal Code and three of those individuals are acquitted of that charge, the remaining fourth accused cannot be held guilty of the conspiracy. To support this principle, the Court referred to a passage from Archbald’s Criminal Pleading, Evidence and Practice (33rd edition, page 201, paragraph 361) which explains that when several prisoners are indicted together, a jury may find one guilty and acquit the others, or vice‑versa; however, if the indictment charges a riot and the jury acquits all but two, the two must also be acquitted unless it is shown in the indictment and proven that they participated in the riot together with some other person not tried on that indictment. The passage further states that on an indictment for conspiracy, if the jury acquits all the prisoners except one, that one must also be acquitted unless it is shown in the indictment and proven that he conspired with some other person not tried on that indictment. This Court also accepted with approval a quotation from the judgment in R. v. Plummer, a decision on which the cited passage is based. In another precedent, Bharwad Mepa Dana v. State of Bombay, reported in the second volume of the 1960 Supreme Court Reports at pages 172 and 181, this Court considered the validity of the conviction of three persons under section 302 read with section 149 of the Indian Penal Code when another individual, who had been convicted by the Sessions judge of a similar offense, was subsequently acquitted by the High Court. The Court explained that originally twelve persons had been named in the charge, alleged to have formed an unlawful assembly with the common object of murdering certain victims. The Sessions judge had acquitted seven of those persons and convicted five under sections 302 and 149. The High Court, while acquitting one of the five convicted by the Sessions Judge, held that the unlawful assembly comprised ten to thirteen persons, although the identities of all persons except four were not established, and that all those persons shared the common object and common intention of killing the victims, and that the killings were committed in prosecution of that common object and in furtherance of the common intention. On the basis of these findings, this Court affirmed that the appellants were rightly convicted under sections 302 and 149, and it observed that no legal principle prevented the High Court from concluding that the unlawful assembly consisted of the four convicted persons together with some unidentified persons, thereby numbering more than five members in total.
In this case, the Court noted that the unlawful assembly consisted of the four persons who had been convicted together with some unidentified persons, and that, as indicated by the authorities cited as (1) [1902] 2 K.B 339 and (2) [1960] 2 S.C.R. 172, 181, the total number of participants exceeded five. The Court further observed that it would not embark on a full discussion of the legal effect of the acquittal of nine of the accused persons, except to state that the acquittal could be treated as conclusive for all purposes and that none of those nine individuals could now be said to have participated in the crime, thereby allowing the remaining four individuals to be held guilty under section 149 of the Indian Penal Code. Counsel for the petitioner relied upon these observations and contended that the High Court was incorrect in holding that Laldeo Singh had been killed as a result of a shot fired at him by Ram Bilas Singh Gumasta, and that Laldeo Singh had escaped the charge of murder because he had been acquitted by the Sessions Judge.
The Court then referred to its earlier decision in Kartar Singh v. State of Punjab, where it had held that if the trial court could legally determine that the actual number of members in the assailants’ party was more than five, that group would, in law, constitute an unlawful assembly even though ultimately only three of the accused were convicted. The Court further held that only when the number of alleged assailants is fixed, all of them are named, and the number of persons found to have taken part in the incident is less than five, can it be said that they did not form an unlawful assembly. The Court then observed that “the acquittal of the remaining named persons must mean that they were not in the incident. The fact that they were named excludes the possibility of other persons being in the appellant’s party, especially when there is no occasion to think that the witnesses naming all (1) [1962] 2 S.C.R. 395, 399 the accused could have made mistakes in recognising them.” In support of this conclusion, the Court relied upon its decision in Dalip Singh v. State of Punjab.
Finally, the Court referred to the judgment in Sunder Singh v. State of Punjab, which had also examined the effect of the acquittal of some persons charged under section 302 read with section 149 of the Indian Penal Code on the conviction of the remaining persons who numbered less than five. In that context the Court observed that cases sometimes arise where persons are charged as members of an unlawful assembly and other charges are framed against them for offences committed by such an assembly. In such cases, if the names of the persons constituting the unlawful assembly are specifically and clearly recited in the charge and there is no suggestion that any other known or unknown persons were also members of the assembly, it may be that if one or…
In cases where additional individuals are specifically charged and some of those charged are later acquitted, the acquittal may create a serious weakness in the charge against the remaining accused. In such circumstances, the principle articulated in the case of Plummer may become relevant. For example, if six persons are charged under section 149 of the Indian Penal Code together with other offences, and two of those persons are acquitted, the remaining four may not be convicted because the essential requirement of the existence of an unlawful assembly could be missing.
Applying the facts of the present case, this Court held that the principle set out in Plummer’s case, which was also affirmed by this Court in Topan Das’s case, did not apply to the matter before it. The Court then examined the powers of a court of appeal under section 423(1)(a) of the Criminal Procedure Code. It observed that if, while hearing a case, the High Court finds it necessary to consider, even indirectly or incidentally, the case of an accused who has been acquitted, it may do so and there is no legal prohibition against such an approach. Consequently, the Court found it unnecessary to express any view on whether the interpretation of the scope of powers under section 423, Criminal Procedure Code, in this case aligns with the principle in Plummer’s case.
The Court further referred to its own decision in Mohan Singh v. State of Punjab, where a similar question was examined. In that decision, the Court noted that when five or more persons are shown to have formed an unlawful assembly, the mere fact that fewer than that number are actually tried for the offence committed by the assembly and are convicted does not automatically render their convictions illegal. This is because other persons may not have been available for trial, may not have been properly identified, or may be absent for other reasons. The Court stated that if both the charge and the evidence relate only to the persons named in the charge, and two or more of those named persons are acquitted, leaving fewer than five persons to be tried, then section 149 cannot be invoked. However, the Court also observed that even when the charge names five or more persons as constituting an unlawful assembly, the evidence may reveal that the assembly included additional, unidentified persons who were not named. In such situations, either the trial court or the appellate court may conclude that the acquittal of some of the named individuals does not defeat the charge under section 149 because the factual record shows that the unlawful assembly still comprised five or more persons.
In this case, the Court noted that the mere fact that the persons who were specifically named in the charge and who were tried are convicted does not automatically eliminate the operation of section 149 of the Indian Penal Code. The Court explained that, together with the two or three persons who were found guilty, there could have been other individuals who formed part of the unlawful assembly but who were not identified and therefore were not named in the charge. As a result, the acquittal of one or more of the persons named in the charge does not invalidate a charge under section 149, because the material on record may enable the court of fact to reach the conclusion that the assembly nevertheless consisted of five or more persons. The decisions quoted by the Court therefore make clear that when the prosecution’s case, as articulated in the charge and supported by the evidence, asserts that the alleged unlawful assembly is composed of five or more named persons and no other participants, and when there is no indication that any additional persons participated, the trial court cannot find an unlawful assembly unless it is satisfied beyond doubt that at least five of the named persons were members of that assembly. However, where the prosecution’s case and the evidence show that more than five persons were involved in the incident and that some of those individuals could not be identified, the court is permitted to convict fewer than five persons of the offence of being members of an unlawful assembly, or to convict them of the offence committed by the unlawful assembly, provided that the court is satisfied that five or more persons took part in the incident. The Court further observed that, according to the cited authorities, when a person has been acquitted of an offence, that acquittal remains effective for all purposes when the same incident is examined before a High Court on appeal by other persons who were tried together with the acquitted individual and who were convicted under the assistance of section 149 of the Indian Penal Code. The case of Sunder Singh’s case (1) created an exception to this general rule, allowing the High Court, under section 423 of the Criminal Procedure Code, to consider incidentally whether the acquitted person was a member of the unlawful assembly for the purpose of determining the appeal of the convicted persons. The Court indicated that it was unnecessary to decide in the present matter whether that exception can be recognised consistently with the principle laid down in Plummer’s case (2), which has been uniformly accepted by this Court. The Court also referred to a recent decision in Krishna Govind Patil v. The State of Maharashtra (3), which examined the effect of the acquittal of persons who were tried along with those convicted of an offence under section 302 read with section 34, and noted the observations of Justice Subba Rao, speaking for the Court.
The Court observed that the concept of common intention, as defined in the relevant provision, necessarily implies the existence of a pre‑arranged plan and that the criminal act is carried out in accordance with that plan. The Court explained that while such a plan may be refined or even formulated at the moment the offence is being committed, the essential requirement is that the plan must exist before the act constituting the offence is performed. Accordingly, before a court is able to convict a person under section 302 read with section 34 of the Indian Penal Code, it must be satisfied beyond doubt that the accused had entered into a prior concert or agreement with one or more other persons, whether those persons are identified by name or remain unnamed, for the purpose of committing the murder.
To illustrate how section 34 operates in different factual circumstances, the Court set out three hypothetical illustrations. In the first illustration, persons A, B, C and D are charged under section 302 read with section 34 for the murder of E, and the evidence is directed to show that the four of them participated in the killing. In the second illustration, A, B, C and D together with other unnamed participants are charged under the same sections, and the evidence is introduced to prove that the named accused acted jointly with the unnamed persons in the commission of the offence. In the third illustration, A, B, C and D are charged, and the evidence is offered to establish that A, B, C and D, together with three additional persons, jointly committed the murder. The Court explained that, in the third scenario, a court may rightly conclude that one of the named accused is guilty of murder under section 302 read with section 34 even if the other three named accused are acquitted, provided the court accepts the evidence that the accused acted in concert with persons, named or unnamed, other than those acquitted. In the second scenario, the Court may reach the same conclusion and convict one of the named accused if it is satisfied that the defect in the charge has not caused prejudice to the accused. However, in the first scenario, the Court may convict two or more of the named accused if it accepts the evidence that they acted conjointly in committing the murder.
The Court then turned to the situation where a court acquits three of the four accused, either because it rejects the prosecution’s evidence or because it grants the benefit of doubt to those individuals. The Court questioned whether, in the absence of a specific charge and without supporting evidence, the court could hold that although the three accused were acquitted, some other unidentified persons acted conjointly with the remaining named accused. The Court held that allowing such a finding would amount to fabricating a new case for the prosecution, thereby deciding contrary to the evidence adduced in the trial. The Court emphasized that a court cannot create a prosecution case that is not disclosed in the charge or supported by any evidential basis. There must be a factual foundation in the evidence indicating that persons other than those named participated in the offence; only when such a foundation exists can the situation be treated in the manner described in the third illustration.
The Court explained that a tribunal cannot manufacture a prosecution case that is absent from the charge sheet or unsupported by any evidence. There must be some evidential foundation showing that persons other than those specifically named participated in the offence; only when such a foundation exists does the situation fall within the third illustration discussed earlier. The Court further observed that the principle articulated in the present case also applies when a conviction rests on section 149 of the Indian Penal Code rather than on section 34. Consequently, all the precedents cited by this Court demonstrate that it is within a court’s competence to hold that an unlawful assembly of five or more persons existed even though fewer than five individuals were ultimately convicted, provided one of the following conditions is satisfied. First, the charge must expressly state that, in addition to the named accused, several unidentified persons were also members of the unlawful assembly who shared a common object of committing an unlawful act, and the court must be satisfied by the evidence that this assertion is proved. Second, the first information report together with the evidence must reveal the presence of such additional participants, even if the charge does not mention them. Third, although the charge and the prosecution witnesses may name only the acquitted and convicted individuals, there must be other evidence that discloses the existence of either named or unnamed persons, and in the latter two situations it must be shown that no prejudice has been caused to the convicted person by the omission in the charge of reference to those other participants. Turning to the decision of the Allahabad High Court that was relied upon, the Court noted that the observations quoted from that judgment are consistent with the principle laid down in Plummer’s case and therefore support the argument advanced by counsel. Applying the law as set out, the Court examined whether the High Court’s approach in the present matter was proper. The Court observed that, although some witnesses had vaguely claimed that forty or fifty persons were present at the incident, including the seven individuals identified in the first information report and the charge sheet, the prosecution throughout maintained that only the seven named persons participated. Moreover, the first information report filed by Deva Singh, an injured witness, listed solely those seven persons and made no suggestion that any additional individuals were involved. Despite the absence of any evidentiary indication of further participants, the Court of Session, without addressing the issue of the exact number of members of the alleged assembly, concluded that an unlawful assembly existed whose common object was to assault the victims.
In this case, the Court observed that the allegation was that the defendants had assaulted Laldeo Singh and Deva Singh. The High Court had proceeded essentially on the premise that an unlawful assembly existed, although only some of its members were brought to trial, resulting in the acquittal of four individuals and the conviction of three. The High Court therefore needed to examine whether the testimony of certain witnesses, who claimed that the unlawful assembly comprised many more than seven persons, was credible, or whether those statements should be dismissed in light of the first information report, which identified only the seven named persons as having committed the offence. The Court also noted that the High Court had to consider whether any prejudice arose from a defect in the charge. According to the legal principles articulated by this Court in Mohan Singh’s case (2) and other authorities, the High Court was empowered to review the entire body of evidence, both oral and documentary, and to determine whether an unlawful assembly existed. However, the High Court did not undertake such a full review. Had the High Court reached a reasoned finding that an unlawful assembly of more than five persons, including the appellants and other unidentified persons, existed, and had it consequently convicted the appellants under section 147 and, using section 149, also held them liable for other offences committed by members of the assembly other than those who were acquitted, the matter would have been approached differently. The judgment shows that the High Court was dissatisfied with the manner in which the Court of Session had handled the case, yet it stopped short of a complete analysis. Instead, it should have examined all the evidence, articulated a clear conclusion on the existence of an unlawful assembly, identified the specific acts carried out by any members in furtherance of the common object, and determined whether any of the appellants participated. Based on such findings, the High Court should have assessed whether the appellants could be held vicariously liable for the acts of the assembly, excluding those acts attributed to persons whose acquittal was final. The failure of the High Court to resolve these essential issues was regretted. Consequently, this Court set aside the High Court’s judgment, remanded the matter for a fresh determination, allowed the appeal, and ordered the case to be returned to the High Court for reconsideration.