JonuarJ, 23 v. STATE OF MAHARASHTRA

four accused pe,.ons stood their trial before the Additional Sessions Judge for the murder of one Vishwanath, The char'!" against th•m was that they in view of their common grudg~ a~a.irut the deceased, combin~d together and did away with the dccca.ed. They were ehar~ed under s. 302 read with s, 31 of the India11 Penal <Ade and were al«> 'cparately charged under s. 302 of the l'cual Code. All pleaded not guilty the charge and accused I, 3 and 4 pleaded a 1i6i, while accused 2 raised a pica of private defence. The learned Additional Sessions Judge acquitted all the accused on the ground that the prosecution witnesses Wt're not speaking the truth and the ve,.ion given by accused 2 was the probable one, The State preferred an appeal to the High Court against the order of acquittal under s. 302, read with s. 34, but not against the acquittal under s. 302 of the Pena I Code. The High Co11rt acquitted accused I, 3 and 4 on the ground that it was doubt ful whether any one of them participated in the comn1issiou of the offence and •:onvicted accu5'd 2 on the ground that one or more of them might have participated the offence. this appeal a11d therefore, filed Accused 2, contended that when three of the four named accused, who were charged under s. 302, read with s. 34, were acquitted, the court could not convict only one of the accused on the basis of const111ctive liability. the appellant, Held, that before a court could convict a person u11tlcr s. 302, read with s. 34, it should come to a definite conclusion that the said person had a prior concert with one or more other penons, named or unnann:d, for comn1itting lhe said offence. Held, further, that \vhen accused were acquittr.d either on the ground that the evidence was not acceptable or by giving 1 $.C.R. SUPREME COURT REPORTS 679 benefit of doubt to them, the result in law would be the same : it would mean that they did not take part in the offence. The effect of the acquittal of accused 1, 3 and 4 is that they did not conjointly act with accused 2 in committing the murder. If they did not act conjointly with the appellant, he could not have acted .conjointly with them. The judgment of the High Court docs not indicate that persons other th.'ln the said accused participated in the offence, nor is there any evidence in that therefore, the conviction of the appellant must be set regard, aside. Mohan Sinyh v. St£tte of Punjab, [19G2] Supp. 3 S. C.R. 848, held inapplicable. CRIJHCNAL APPELLATE]URJSDIC'l'ION: Criminal Appeal No. ~O l of mu~. Appeal by special leave from the Judgment and order dated February 20, 1962, of the Bombay High Court in Criminal Appeal No. 1+05 of 1961. C. L. 8<'reen, for the appellant. JI. U. Kh1mnn and H. ll. JJhebnr, for the respondent.

#1963. January 23. The Judgment of the Court was delivered by SuBBA RAo, .J.-This appeal by special leave is directed against the judgment of a division Bench of the Bombay High Court setting aside the order of acquittal made by the Additional Sessions Judge, Kolaba,. and convicting the appellant under s. 302, read with s. 34, of the Indian Penal Code and sentencing him to imprisonment for life. 1963 Kri.oh11a Govinrl Patil v. Statt of /11aharashtra Subba Rar>, J. In the year 195!.J, The case of the prosecution may be briel!y stated. two persons by name Ramachandra Bu<lhya and Govind Dliaya Wei·e inclu· murdered by some people. ding one Dcoram Maruti Patil, were brought to In all J l accused, .. ..

#680. SUPREME COURT REPORTS [1964] vot. . l h \ 1953 Subba Rao, J. v. Slal_e oj J.fo.harashlra trial; and out of them 8 accused;'}iid~di~g the said '... Kri.>hn; Got·inJ Pa•;1 Deoram Maruti Patil, were acquitted. During that trial Deoram Maruti Patil's uncle, by name Vishwa· nat , active y helped Deoram l\faruti Patil in the conduct of his· defence. Accused I and 2 in the present case are the sons of Govind Dhaya ·and . accused 3 ; and 4 . are the nephews of Ramachandra · - Budhya. They bore a grudge against Vishwanath for helping Deoram Maruti Patil and bringing about his acquittal. .. On August 19, 1960, Vishwanath and one Mahadeo Pandu Patil left their village at about 8.30 p.m. in order to go to Pezari en route to \Vhen they were walking along a bund, accused I to 4 came from behind, armed with long .. sticks and th~ stick carried by accused l had a blade .attached to it. They belaboured the deceased rem!· . Alibag. ting in his death. . · The four accused had to stand their trial for the murder ofVishwanath before the Court of the , _Additional Sessions Judge, Kolaba. The charge against them. was that they, in view of their common grudge against the deceased, combinc:-d together and did away with the deceased. · The said four persons were charged under s. 302, ·read withs. 34, of.the ·• .. Indian Penal Code for committing the murder of the . deceased in furtherance of their common intention. · 'All of· them were also charged . separately ·for the substantive· offence under s. 30:! of the Indian Penal C@de. All the accused pleaded not guilty to· the . While accused 1, · 3 and 4 pleaded alibi, accused 2· raised a plea of 'private defence. The prosecution· examined eye.witnesses,. who deposed that the four accused overtook the deceased when he was going to.village Pezari and felled him down · by giving him lathi blows. None of the witnesses spoke _to the presence of any other person, named or took part in the assault of the unnamed, who deceased. The learned Additional Sessions Judge found that the prosecution witnesses were not speaking· · charge. I 1963 Krishna Govind Patil v. State of Maharashtra Subba Rao, J. 1 S.C.R. SUPREME COURT REPORTS 681 the truth and that the version given by accused 2 In 1 he result he acquitted was the probable one. all the accused. The State preferred an appeal to the High Court against the said order of acquittal under s. 302, read with s. 34, of the Indian Penal Code ; but no appeal was preferred against the order of acquittal under s. 302 of the Indian Penal Code. The judgment of the High Court discloses that the learned Judges were inclined to believe the evidence of the witnesses, other than Kashinath and Shridar. llut they dismissed the appeal against accused l, 3 and -! on the ground that the appeal was against an order of acquittal. llut in regard to accused 2, they held that he was one of the participants in the assault and there was no basis for his plea of private defence. Having come learned Judges convicted accused 2 under s. 302, read withs. ;;+, of the Indian Penal Code. As re gards the persons who participated in the assault along with accused 2, it would be appropriate to quote the words of the High Court itself : that conclusion, "Some of the other accused were undoubtedly concerned with the incident along with accused No. 2. Since it is possible that the story as given by the prosecution witnesses, and parti cularly by Mahadeo, was exaggerated, it is not safe to hold that each one of the other accused In view was also a participant in the offence. of the possibility that one or more of the other accused, i.e., accused Nos. 1, 3 and 4, might not have participated in the offence, we do not propose to interfere with the acquittal of these accmed. But we are satisfied that accused No. 2 along with one or more of the other accused committed this offence and that accused No. 2 was, therefore, clearly guilty under section 302 read with section 34 I. P. Code". To put it in other words, they, acquitted accused 1, 3. and 4 on the ground that it was doubtful whether 1963 Kr~lma Go1:i11d Putil v. Statt of Maha1a;lttra .. 682 SUPREME COURT REPORTS [1964] VOL. any one of them participated in the commission of the offence and convicted accused 2 on the ground that one or more of them might have parlicipalcd in the offence. Accused 2 has filed the present appeal against the judgment of the High Court. The argument of learned counsel for the appel lant may be put thus : The learned Additional Sessions Judge acquitted the accused under s. 302 of the Indian Penal Code and also under s. :302, read with s: 34, of the said Code. The appeal in the High Court was confined only to the acquittal of the accused under s. :l02, read with s. :l4, of the Indian Penal Code. The charge as well as the evidence was only directed against the four named accused as the participants in the common intention to commit the murder of the deceased. The High Court having acquitted accused I, 3 and •I, inconsistently convicted accused 2 for having committed the murder of the deceased jointly with the three accused who h<i:d been acquitted. To put it differently, the argument is that when three of the four named accused. who were charged under s. :l02, read withs. :l4, of the Indian Penal Code, were acquitted, the court couid not convict only one of the accused on the basis of constructive liability. Learned counsel ·for the respondent counters this argument by slating that though the' charge as wdl as the evidence was directed against the 4 named accused, a court could come to the conclusion that 3 of the 4 named accused are nol identified but more than one had taken part in the commission of the offence and that in the present case on a fair reading of the entire judgment we should hold that the High Court found that though accused I, 3 and 4 were not identified, 3 unidentified persons must have taken part in the murder. Section 34 of the Indian Penal Code reads : "When a criminal act is done by several per sons, in furtherance of the common intention 1963 Krishna Gouind Pal v. State qf Mahar.ishtro . Subba Rao, J. i S.C.R. SUPREME COURT REPORTS 683 of all, each of such persons is liable for that act in the same manner as if it were done by him alone." It is well settled that common intention within the meaning of the section implied a pre-arranged plan and the criminal act was done pursuant to the pre . arranged plan. The said plan may also develop on the spot during the course· of the commission of the offence; but the crucial circumstance is that thl! said plan must precede the act constituting the offence. If that be so, before a court can convict a person under s. 302, read with s. 34, of the Indian Penal Code, it should come to a definite conclusion that the said person had a prior concert with one or more other persons, named or unnamed, for committing the said offence. A few illustrations will bring out the impact of s. 34 on different situations. (I) A, B, C and D are charged under s. 302, read with s. 34, of the Indian Penal Code; for com mitting the murder of E. The evidence is directed to establish that the· said four persons have taken part in the murder. "(2) A, B, C and D and unnamed others are charged under the said sections. But evidence is adduced to prove that the said persons, along with others, named or unnamed, participated jointly in the commission of that offence. (3) A, B, C and D are charged under the said sections. But the evidence is directed to prove that A, B, C and D, along with 3 others, have jointly committed the offence. As regards the third illustration, a Court is certainly entitled to come to the conclusion that one of the named accused is iuilty of murder under s. 302 read with s. 34, of the Indian Penal Code, though th~ 19~3 .. Krislure Got1ind Patil ' St4l1 of Mab.raltlra SwHll4D, J, 684 SUPREME COURT REPORTS [1964] vot. other three named accused are acquitted, if it accepts the evidence that the said accused acted in concert along with persons, named or unnamed, other than those acquitted, in the commission of the offence. In the second illustration, the Court can come to the same conclusion and convict one of the named accused if it is satisfied that no prejudice has been caused to the accused by the defect in the charge. But in the first illustration the Court certainly can convict two or more of the named accused if it accepts the evidence that they acted conjointly in committing the offence. But what is the position if the Court acquits 3 of the 4 accused either because it rejects the prosecution evidence or because it gives the benefit of doubt to the said accused ? Can it hold, in the absence of a charge as well as evidence, that though the three accused are acquitted, some other unidentified persons acted conjointly along with one of the named persons ? If the Court could <lo so, it would be making out a new case for . the prose cution : it would be deciding contrary to the evidence adduced in the case. A Court cannot obviously make out a case for the prosecution which is not disdmed either in the charge or in regard to which there is no basis in the evidence. There must be some foundation in the evidence that persons other than those· named have taken part in the commission of the offence and if there is such a basis the case will be covered by the third illustration. In support of the contention that a Court, even in the first illustration, can acquit 3 of th~ 4 accused named in the charge on the ground that their identity has not been established, and convict one of them on the ground that more than one took part in the commission of the offence, reliance is placed upon the decision of this Court in Mohan Singh v. State of Punjab('). There, the appellants, along with three others, were charged with having committed offence under s. 302, read withs. 149, as well ass. 323, read (I) [11162) Supp. S S.c.R. IH8. 858. 1963 -Jrri•lut• G"ini l'"i I .. State of MaMtuhlra Subbti R«8, J. 1 S.C.R. SUPREME COURT REPORTS 685 with s. 149, of the Indian Penal Code. The Sessions Judge acquitted two of them, with the result 3 of them were convicted. One of the accused was con victed·under s. 302 ands. 147 and two of the accused were convicted under s. 302, read with s. 149 and s. 147, of the Indian Penal Code. The High Court confirmed their convictions. . On appeal by special leave to this Court, two of the accused convicted under s. 302, read with ss. 149 and 14 7, of the Indian Penal Code, contended, inter alia, that as two of the five accused were acquitted, their conviction under s. ::102, read with ss. 149 and 14 7, was bad in law, This Court held on the evidence that the said two accused had done the act pursuant to a pre-arranged plan and therefore they could be convicted under s. 302, read withs. 34, of the Indian Penal Code. But in the course of the judgment different situations that might arise in the context of the question now raised were noticed. Adverting to one of the situatiom similar to that now before us, this Court observed : "Cases may also arise where in the charge, the five or more persons prosecution names and alleges that_ they constituted an unlawful assembly. In such cases, if both the charge and the evidence are confined to the persons named in the charge and out of the persons so named two or more are acquitted leaving before the court less than five persons to be tried, then s. 149 cannot be invoked. Even in such cases, it is possible that though the charge names five or more per.•ons as com posing an unlawful assembly, evidence may nevertheless show that the unlawful assembly consisted of some other persons as well who were not identified and so not named. In such cases, either the trial court or even the High Court in appeal may be able to come to the conclusion that the acquittal of some of the persons named in the charge and tried will not necessarily 1963 Krishtt• Gotimi P121.1 v. SWt 'If Maltartulitro S•£f>a Ru, J. 686 SUPREME COURT REPORTS [1964] VOL. displace the charge under section 149 because along with the two or three persons convicted were others who composed the unlawful assembly but who have not been identified and so have not been namrd. In such cases, the acquittal of one or more persons named in the charge does not affect the validity of the charge under section 149 because on evidence the court of facts is able to reach the conclusion that .the persons composing the un· lawful assembly nevertheless were five or more It is true that in the last category of than five. cases, the court will have to be very careful in reaching the said conclusion. But there is no legal bar which prevents the court from reach· ing such a conclusion." It will be seen from the said observations that this there was C<iurt was visualizing a case where evidence on the record from which the court can It may be that the come to such a c,incJu5io11. charge discloses only named persons; it may also be that the prosecution witnesses named only the said accused; but there may be other evidence, such as that given by the court· witncSses, defence witnesses or circumstantial pieces of evidence, which may disclose the existence of named or unnamed persons, other than those charged or deposed to by the prose· cution witnesses, and the court, on the basis of the said evidence, may come to others, named or unnamed, acted conjointly along with one of the accused charged. But such a conclu· sion is really based on evidence. The observations of this Court really apply to a case co\·ered by the third illustration given by us. the conclusion But the present case falls outside the said three illustrations. The High Court gave conflicting findings. While it acquitted accused I, 3 and 4 under s. 302, read withs. 34 of the Indian Penal 196! J(,i,/ma GflvinJ P•til v, State of Maharruhtra Sulba Ra1, J. 1 S.C.R. SUPREME COURT REPORTS 687 Code, it convicted accused 2 under s. 302, read with s. 34, of the said Code, for having committed the offence jointly with the acquitted persons. That is a legally impossible position. When accused were acquitted either on the ground that the evidence was not acceptable or by giving benefit of doubt to them, the result in law would be the same : it would mean that they did not take part in the offence. The effect of the acquittal of accused· I, 3 and 4 is· that they did not conjointly act with accused 2 in commi If they did not act conjointly tting the murder. with accused 2, accused 2 could not have acted con jointly with them. Realizing this mutually des· . tructive findings of the High Court, learned counsel for the State attempted to sustain the findings of the High Court by persuading us to hold that if the said finding was read in the context of the whole judg· ment, it would be clear that the learned Judges meant to hold that persons other than the acquitted accused conjointly acted with the convicted. accused. We have gone through the entire judgement carefully with the learned counsel. But the observations of the learned Judges as regards the "other participants" in the crime must in the context refer only to the "one or other of the said three acquitted accused participa· ted in the offence committed by accused 2." There is not a single observation in the judgment to indicate that persons other than the said accused participated in the offence, nor is there any evidence in that regard. ,We, therefore, hold that the judgment of the High Court cannot stand. We are satisfied that on the findings arrived at by the High Court, the conviction of accused 2 is clearly wrong. In the result, we allow the appeal, set aside the conviction of the appellant and direct him to be set at liberty. Appeal allowed.