Judgment

UNTWALIA, J.:- There are nine respondents in this appeal filed by the State of Haryana on grant of special leave by this Court. The trial Court convicted each of the said respondents under Sec. 302 read with S. 149 of the I. P. C. and awarded life imprisonment to each. They were further convicted under S. 325 read with S. 149 and for the offence of rioting. The High Court of Punjab and Haryana has acquitted Prabhu, respondent No. 1 and Hoshiar, respondent No. 6 of all the charges accepting their plea of alibi. It has maintained the conviction of other seven respondents only under S. 325 read with Sec. 149 of the Penal Code and not under S. 302 read with S. 149. A sentence of seven years rigorous imprisonment has been awarded to Sheoram plus a fine of Rs. 2,000/- and the others have been given a sentence of three years rigorous imprisonment plus Rs. 1,000/- fine, each. They did not challenge their conviction in this Court by filing an appeal. We were informed at the Bar that all the convicted respondents have served out their sentences. The State had presented this Appeal for setting aside the acquittal of Prabhu and Hoshiar and for convicting them along with other respondents under Sec. 302 read with Section 149 of the Penal Code.

2. Since after a careful consideration of the submission made before us we did not feel persuaded to interfere with the decision of the High Court and to allow the appeal, we need not elaborately deal with the facts or the points involved in them. A short judgment will be sufficient to dispose of this appeal.

3. Respondent Prabhu is the Sarpanch of the village in the outskirts of which the occurrence took place. He had some enimity with Mohar Singh, P. W., one of the injured persons in the occurrence. Respondent Sheoram had greater and more direct enmity with him. The persons injured in the occurrence and a few others were related to Mohar Singh P. W. or belong to his group and the respondents and one Harphool acquitted by the Trial Court were related to and belonged to the group of Prabhu and Sheoram. On the 7th of June, 1973, Kalu, the deceased, Mohan Singh, Ganpat, Rameshwar, Mainpal and Sultan. P. Ws. went in the morning to Narnaul to attend C. I. A. office. They were there till 5.00 or 6.00 p.m. They boarded a Railway train at Narnaul and got down at Ateli Railway Station at about 9.00 or 10.00 p.m. Their village was at a distance of about three miles from Ateli Railway Station. When they were going to their village and were at a distance of about 3/4th of a mile from it they are said to have been attacked by the respondents and the acquitted accused Harphool. The respondents were armed with lathis and it is said that Harphool had a Kulhari (hatchet). The complainants party was attacked near the well of Sheotaj. The lathi injuries inflicted on Kalu proved fatal. Some of the P. Ws. also received injuries, a few of them being grievous. The prosecution case against Harphool was not accepted by the trial Court at all as he was almost blind at the time of occurrence and was an old man of 75 years of age. It may be mentioned here that this Harphool is the brother of respondent Prabhu. The injured witnesses are Mohar Singh, P. W. 3, Ganpat, P. W. 4 and Rameshwar, P. W. 6, Mainpal, P. W. 9 and Sultan, P. W. 10 were also in the party of the complainant. They witnessed the occurrence but themselves were not hurt.

4. We shall take up the points urged on behalf of the State one by one. The first submission was that the High Court committed an error in converting the conviction of the seven respondents from one under Sec. 302 read with Sec. 149 to S. 325 read with S. 149, I. P. C. It was strenuously urged before us that the mob had not only the common object to kill Kalu but on the facts of this case they had even the common intention. In any event, the submission was the members of the unlawful assembly knew that in prosecution of the common object of assaulting the members of the complaints party mur