Judgement

IMAM J. : The real question in this appeal is whether the conviction of the appellants under Ss. 323 and 326 read with S. 34, Penal Code is legal in the circumstances of the present case. The Magistrate, who tried the appellants framed a charge under Ss. 148, 323 and 326 read with S. 149, Penal Code. He found them and seven others guilty of this charge and convicted them accordingly. The Second Additional Sessions Judge of Meerut, in appeal, acquitted all the accused except the appellants whose conviction he maintained but reduced their sentence.

The appellants moved the High Court of Allahabad in its revisional jurisdiction and the High Court held that as a result of the Additional Sessions Judge s judgment the appellants could not be convicted under S. 148 or Ss. 323 and 326 and 326 read with S. 149, Penal Code as the ingredients to establish the existence of an unlawful assembly were absent. The High Court, however, convicted the appellants under Ss. 323 and 326 read with S. 34, Penal Code and it is against this decision that the appellants obtained special leave to appeal to this Court.

2. There were two versions of the occurrence before the Courts below and that of the prosecution, except as to who had participated in it, was accepted and the defence version was rejected. The case of the prosecution as accepted shows that the complainant Randhir Singh was passing the Chari field of the appellants with his bullocks when he was asked by them as to why his bullocks had grazed the Chari . The complainant denied this, whereupon after some altercation, he was assaulted by the appellants with lathis and a spear. He received injuries from the lathi blows but was able to run away raising an alarm. He was followed by the appellants.

After he had gone some distance, some persons came to his help. The complainant and these persons were assaulted by the appellants who had come up by then. The story of the prosecution which had not been accepted is this that previous to this 8 other persons had also come and they and the appellants together assaulted the complainant and his men.

3. Mr. Isaacs for the appellants has argued that the occurrence which took place on 15-10-1949 consisted of 2 incidents - one near the Chari filed of the appellants and the other some distance away, when the complainant is said to have been assaulted by several persons including the appellants who are said to have been members of an unlawful assembly. All those persons had been acquitted except the appellants and there was nothing to show that there was any previous concert between the appellants and the acquitted accused. At the second incident several persons had come up suddenly and there was nothing to show that the assault took place as a result of a prepared plan between them and the appellants.

Accordingly the appellants could not be convicted by the application of S. 34, Penal Code. He relied upon the decision of the Privy Council in - Mahbub Shah v. King Emperor , 1945 PC 118 as well as, on the decision of this Court in - Pandurang v. State of Hyderabad , 1955 SC 216. He urged that before the provisions of S. 34, Penal Code could apply the prosecution had to prove that there was a common intention and that it was insufficient to show that the appellants had the same or similar intention. He also urged that as the prosecution case had been substantially rejected in that 8 out of the 11 accused had been acquitted, the appellants should not have been convicted on the same evidence which was unreliable so far as the rest of the accused were concerned.

4. In an appeal by way of special leave this Court usually does not interfere with the findings of fact arrived at by the Courts below and nothing substantial has been shown to persuade us to go behind the findings of fact arrived at by them.

5. It is unnecessary to refer to the various decision of this Court and of the Privy Council cited by Mr. Isaacs, which deal with S. 34, Penal Code, because on