Judgment

CHANDRACHUD, J. :- Eighteen persons were tried by the Additional Sessions Judge, Agra, for various offences arising out of the murders of five persons: Gajraj Singh, Bhairon Singh, Budh Singh, Pancham Singh and Amar Singh. The learned Judge acquitted eight persons and convicted the remaining ten. Nine out of these ten were convicted under Sections 302 and 201 read with Section 149 of the Penal Code. Seven out of these nine were sentenced to death and the remaining two to imprisonment for life. The tenth to be convicted was held guilty under Section 201 read with Section 149 and was sentenced to imprisonment for seven years.

2. In appeals filed by the accused the High Court of Allahabad substantially modified the judgment of the trial court. It convicted only one accused, Dev Chand, under Section 302 and upheld the sentence of death imposed on him by the trial court. It also upheld his conviction and sentence under Section 201 read with Section 149. The conviction and sentence of eight of the accused under Section 302 read with Section 149 was set aside by the High Court. It, however, upheld the conviction and sentence of five out of those under Section 201 read with Section 149.

3. These appeals by special leave are filed by the State of Uttar Pradesh against the judgment of the High Court acquitting eight out of the nine accused who were convicted by the trial court under Section 302 read with Section 149. Thus, the main questions to be considered in this appeal are whether the respondents were members of an unlawful assembly, whether the common object of that assembly was to commit the murder of the five persons and whether the respondents or any of them can be held vicariously liable for those murders.

4. The incident leading to the prosecution of the respondents occurred on November 5, 1967 at Pilwa, District Agra, U. P. There were disputes between the villagers regarding the right to take water from a tube-well. As the revenue authorities were unable to fix the turns for taking water, Mahipat Singh - the absconding accused - was appointed as a Thokdar to regulate the distribution of water.

5. On or about November 1, 1967 the deceased Gajraj Singh cleared the channel leading to his field in an attempt to take water from the well. The Thokdar, Mahipat Singh, asked Gajraj Singh to postpone taking the water until he himself had finished his turn. Two days before the incident, Mahipat Singh told Gajraj Singh that he could take water for irrigating his field from the evening of Saturday the 4th November. Gajraj Singh accordingly started irrigating his field on Saturday but Mahipat Singh objected once again. Gajraj Singh and his companions affirmed their intention to take water at all costs whereupon Mahipat Singh is alleged to have left the field uttering some threats.

6. A little after sunrise on the next day, the 5th November, an armed group of over twenty persons including the respondents went to Gajraj Singh s field. Mahipat Singh ordered his companions to divert the water from the field of Sarnam Singh who, it seems, was taking water from the well after Gajraj Singh had finished irrigating his field. On an objection being raised by Gajraj Singh and his companions, the accused are alleged to have opened fire as a result of which at least four out of five persons died instantaneously. Those four are : Gajraj Singh, his brother, Bhairon Singh, his nephew Budh Singh and a person called Pancham Singh. Amar Singh, the son of Gajraj Singh, was also injured by a gun-shot, but according to the prosecution he survived for some time.

7. The dead bodies of the four victims were then dragged by the accused over a distance of about a furlong. Amar Singh was forced to walk the distance. At a spot near a cattle-shed, six of the accused who were armed with Gandasas beheaded Amar Singh and severed his arms and legs. Thereafter, they decapitated the four dead bodies and severed their limbs. They smashed two nearby huts, collected a little