IMPORTANT POINTS
(1) Common object – When once prosecution established membership of an accused/convict in unlawful assembly individual overt act is not to be established by prosecution to bring culpability on him on principle of constructive/vicarious liability.
(2) Abatement of appeal – Effect and impact of reduction of number of convicts pending an appeal owing to death of co-convicts is bound to be different from effect and impact of reduction of number of accused/convicts on account of acquittal.

JUDGMENT :

C.T. Ravikumar, J.

1. The appellants along with eight others stood the trial before the Court of Additional Sessions Judge – III, Rampur in Uttar Pradesh in Sessions Trial No.167/1981 for offences under Sections 302/149, 307/149, 147 and 148 of the Indian Penal Code (for short ‘IPC’). As per judgment dated 10.06.1982 all of them were convicted under Section 302/149, IPC. Further, it was found that offence u/S 307/149 was not made out against them, but offences under Sections 324/149 and 323/149 were made out. Consequently, they were also convicted under those Sections. In addition, seven of the accused persons including the appellants were convicted under Section 148, IPC and the three others were convicted under Section 147, IPC. For the conviction under Section 302, IPC they were sentenced to undergo imprisonment for life. For the convictions under the other Sections, they were handed down different terms of imprisonment and all the sentences were directed to be run concurrently. They jointly filed appeal viz., Criminal Appeal No.1510/1982 before the High Court of Judicature at Allahabad. During its pendency seven of them died and consequently, qua them the Appeal was dismissed as abated. As per the impugned judgment dated 19.08.2014, the said appeal qua the surviving appellants – Gurmail Singh, Kewal Singh and Karnail Singh was dismissed and the conviction and the sentences were confirmed. Though this appeal has been preferred jointly by Gurmail Singh and Kewal Singh the latter died during the pendency of this appeal. Hence, this appeal qua Kewal Singh got abated. Karnail Singh did not join in this appeal. In short, this appeal survives only in the case of the first appellant – Gurmail Singh and hence, in this appeal, hereafter, he is referred to as ‘the appellant’.

2. The appellant was accused No.3 before the Trial Court. Realizing the real scope of the appeal, the learned counsel for the appellant confined his arguments only for alteration of the conviction to one under Section 304 of the IPC in place of the conviction under Section 302, IPC.

3. Heard, the learned counsel for the appellant and also the learned counsel for the State.

4. Briefly stated, the prosecution case is as under:

PW-1 Shri Darshan Singh lodged the First Information Report. Accused Nos. 1 and 2 Messrs. Thakur Singh and Chanan Singh are real brothers of his father Dalip Singh (hereinafter referred to as – the deceased). The siblings purchased sixteen acres of land in village Dhuriayee in district Rampur under two different sale deeds. A sale deed for ten acres of land was executed in favour of Messers Thakur Singh and Chanan Singh and the remaining six acres were registered in favour of the deceased under a separate sale deed. Based on mutual consent a partition of the lands covered by the said sale deeds was effected. Chanan Singh was a chronic bachelor and he was living with Thakur Singh and they were jointly cultivating on the ten acres of land lying towards west of the hedge raised to separate fields, referred to in Hindi by the parties ‘Mend’, lying from north to south direction (vertical), raised to separate the lands of the parties. The deceased was cultivating on the portion lying towards east of the said Mend. While so, at a belated stage Thakur Singh and Chanan Singh sought for an exchange of the lands and asked the deceased to cultivate on six acres of land situating towards south of the total extent of sixteen acres so as to enable them to effect cultivation on the remaining extent. This was not agreeable to the deceased. The said sibling dispute initially led to civil litigations and later on, led to the unfortunate incident in which Dalip Singh lost his life. The genesis of the incident is a disputation over the sown field which is a strip of four acres out of the total extent of sixteen acres.

5. On 26.10.1980, PW-1, his parents and brothers were in their house when their servant Rohtash came to inform them that Thakur Singh and Chan