Judgment

SHAH, J:- At mid-day on July 2, 1962, an unlawful assembly of about 80 persons, armed with lethal weapons made an assault upon certain villagers of Mananki Khandha who were engaged in agricultural operations and caused injuries to six persons. Budhia, one of the persons injured died as a result of the injuries, a few hours after the assault. The seven appellants in this appeal and one Harihar Gope were tried before the Additional Sessions Judge, Patna for offences under S. 302 read with Ss.149, 147, 148, 323, 324, 325 read with 34 and 326, I. P. Code, on the charge that they had formed an unlawful assembly and had committed rioting and in prosecution of the common object of the unlawful assembly, viz,, to rescue their cattle which had damaged the maize crop of Budhia and had on that account been detained by the villagers, and to assault persons resisting the rescue, and had caused injuries to the victims as a result of which Budhia died. The Sessions Judge held, relying on the evidence of four witnesses P. Ws. 5, 8, 12 and 18, that Harihar Gope had caused injuries with a spear to Budhia which resulted in her death. He accordingly recorded an order of conviction against Harihar Gope of the offence under Section 302, I. P. Code and against the other appellants for the offence under Section 302 read with S. 149,I. P. Code.

2. The High Court of Patna in appeal acquitted Harihar Gope for the offence under S. 302, I.P.C. for they entertained doubt about Harihar Gope s presence in the unlawful assembly in question. The High Court observed that Harihar Gope was a resident of another village and had no reason to bring his cattle to the village Mananki Khandha for grazing, and that the name of Harihar Gope was not mentioned in the first information which was given at the police station in the presence of the witnesses who deposed to the assault made on Budhia by Harihar Gope. The State has not appealed against that order of acquittal. The High Court has however confirmed the conviction of the other appellants for the offence under Section 302 read with S. 149 I. P. Code.

3. In this Court, counsel for the appellants contends that because of the order of acquittal passed by the High Court in favour of Harihar Gope, conviction of the other appellants for the offence under Section 302 read with S. 149, I. P. Code cannot, in law, be sustained. Counsel argues that if Harihar Gope who was according to the case of the prosecution responsible for causing the death of Budhia is acquitted, the appellants who were charged with sharing the common object of the unlawful assembly cannot be convicted for the vicarious liability arising out of the offence committed in prosecution of the common object of the unlawful assembly. There is no substance in that argument. The case for the prosecution when analysed consists of four parts-(l) that there was an unlawful assembly of 30 persons the common object of which was to forcibly rescue cattle detained by the villagers of Mananki Khandha and to beat up all those who resisted; (2) that six villagers of Mananki Khandha were beaten up by the members of the unlawful assembly and Budhia died in consequence of the injuries suffered by her; (3) that the injuries were caused to the six victims by the members of the unlawful assembly in prosecution of the common object of the unlawful assembly or the injuries were such that the members of the assembly knew to be likely to be caused; (4) that Harihar Gope was a member of the unlawful assembly, and he caused injuries to Budhia in prosecution of the common object of the assembly in consequence of which she died. The result of the finding of the High Court is that the first three parts are made out but not the last. On that account however we are unable to hold that the appellants who are proved to be members of the unlawful assembly escape liability for conviction under Section 302, read with S.149 I. P. Code. On the finding recorded by the High Court it inevitabl