JUDGMENT

N. M. Kasliwal, J. - All the above four appeals relate to the same incident and are directed against the same Judgment of Delhi High Court dated 26.8.1978 as such they are disposed of by one single order. It may be mentioned that so far as Appeal No.57 of 1980 is concerned, the accused appellant, Amar Singh Solanki having died, his legal representatives have filed an application for permitting them to continue the appeal, but as we are maintaining the conviction, it is unnecessary to bring the legal representatives on record and we dismiss this appeal as having abated.

2. We do not consider it necessary to mention the facts in detail as we are upholding the findings of the High Court as regards the participation of the accused appellants in the crime. The only question to be considered by us is regarding the offence committed by the appellants and the sentence to be awarded, in the facts and circumstances of the case.

3. The incident relates to a highway robbery committed on 20th April, 1975 at 7.30 p.m. in which one Naresh Chand resident of house No.ll2 Ram Kishore Road, Civil Lines, Delhi died on account of injury inflicted by accused persons. The police chal1aned five pernos, namely, Subhash, Jagmal Singh, Bishan Dayal, Suraj Bhan and Amar Singh for dacoity and murder. The learned Additional Sessions Judge, Delhi convicted and sentenced all the five persons in the following manner:

(1) Subhash - convicted under Sections 3021396 IPC and sentenced to death - convicted under Section 143 IPC and sentenced to rigorous imprisonment for six months - also convicted under Section 395/397 and sentenced to rigorous imprisonment for ten years.

(2) Jagmal Singh, Bishan Dayal, Suraj Bhan and Amar Singh Solanki - all these four accused persons convicted under Sections 302/149 as well as under Section 3951396/IPC and sentenced to imprisonment for life. All these persons were also convicted under Section 143 IPC and sentenced to rigorous imprisonment for six months. Aggrieved against the Judgment of the Additional Sessions Judge, all the accused persons filed appeals in the High Court. The High Court allowed the appeal of Jagmal Singh and acquitted him of all the charges. As a result of acquittal of Jagmal Singh, the High Court held that only four accused persons remained involved in the incident. The High Court held that the prosecution had named only five persons who jointly robbed and murdered Naresh Chand but now with the acquittal of Jagmal Singh the number was reduced to four and the presumption, therefore, had to be that only four persons committed the offences. The High Court further held that as there were only four persons the conviction under Section 149 cannot be maintained, but the appellants can be convicted for murder with the help of Section 34 IPC, if common intention of the appellants to commit murder was held proved. The High Court while discussing the question of common intention held as under:

"The facts discussed above show that the four. appellants were traveling in a scooter-rickshaw at the time of the incident; the registration number of the rickshaw could not be seen since some mud had been splashed on a part of its number plate; the rickshaw suddenly stopped near Naresh Chand who was walking on the road; first two of the offenders jumped out of the rickshaw and stabbed Naresh and then two more got down from the rickshaw and all the four robbed Naresh Chand; engine of the scooter-rickshaw was kept running during this interval; when a hue and cry was raised by Shanti Lal and Rajinder Singh P.Ws, the four assailants jumped back into the rickshaw which was driven away from the place of incident. We have absolutely no doubt that the offenders had the common object of robbing and committing murder of Naresh Chand. It is true, that we do not know which of the appellants gave the stab blow".

5. The High Court after arriving at the above conclusion, convicted all the accused appellants under Sections 302134 and