Full Judgment Text
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PETITIONER:
RAM TAHAL & ORS.
Vs.
RESPONDENT:
STATE OF U.P.
DATE OF JUDGMENT18/11/1971
BENCH:
REDDY, P. JAGANMOHAN
BENCH:
REDDY, P. JAGANMOHAN
PALEKAR, D.G.
CITATION:
1972 AIR 254 1972 SCR (2) 423
1972 SCC (1) 136
ACT:
Indian Penal Code (Act, 45 of 1860), ss. 34 and 149--Six
persons named as the only members of unlawful assembly-Two
acquitted Whether others can be convicted under s.
149--Conviction under s. 34--Conditions for.
HEADNOTE:
Six accused were charged with the offenses under ss. 148 and
302 and 307 read with s. 149 I.P.C., for having formed
themselves into an unlawful assembly with the common object
of demolishing a thatch belonging to the complainant and for
causing death and injuries when resisted. The trial court
convicted them. On appeal, two of the accused were ac-
quitted and the appellants were convicted for offenses under
ss. 148 and 304 and 307 read with s. 149.,
On the question of the validity of the conviction,
HELD : (1) Before s. 149, which prescribes constructive
criminal liability for members of an unlawful assembly, can
be called in aid, the court must find with certainty that
there were at least five persons sharing a common object.
It is possible in some cases that though five were un-
questionably present the identity of one or more is in doubt
in which case a conviction of the rest with the aid of s.
149 would be good. Therefore, it is not necessary that in
every Case five persons must always be convicted before s.
149 can be applied. But in such a, case, the court must
find with unerring certainty, that at least five persons
were present. [426 H; 427 A-C]
In the present case, the charge definitely named the four
appellants who have been convicted, and the two who have
been acquitted, a,% being the only members of the unlawful
assembly. Since two of the named accused were acquitted the
conviction of the other four under s. 148 and Es. 304 and
307 read with s. 149 cannot be sustained on the charge as
framed. [427 F-H]
(2) The appellants, however, were guilty of offenses under
ss. 304 Pan 1 and 307 read with s. 34. The totality of the
circumstances indicated that there was a preconcerted plan
and a common intention to remove the thatch and to attack
any person who resisted. [432 E-H]
The common intention under s. 34, should be anterior in time
to the commission of the crime showing a prearranged plan
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and prior concert., Generally, it has to be inferred from
the acts or conduct of some or all the accused and the
totality of relevant circumstances in the case, such as, the
manner in which the accused arrived on the scene and mounted
the attack, the determination and concert with which
injuries were caused by one or some of them the acts done by
others to assist those causing the injuries, and the
concerted conduct subsequent to the commission of the
offence as for instance that all of them left the scene of
the incident together. [428 A-E]
Dalip Singh & Ors. V. State of Punjab [1954] S.C.R. 145
Mohan Singh v. State of Punjab, [1962] Supp. 3 S.C.R. 848
and Krishna Govind Patil v. State of Maharashtra, [1964] 1
S.C.R. 678, followed.
424
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 27 of
1969.
Appeal by special leave from the judgment, and order
dated .May 22, 1968 of the Allahabad High Court in Criminal
Appeal No. 2636 of 1967 connected with Criminal Appeal No.
2602 ,of 1967.
D. P. Singh, V. J. Francis and Suresh Prasad Singh, for
the appellants.
O. P. Rana, for the respondent.
The Judgment of the Court was delivered by
P. Jagmohan Reddy, J. Six accused were charged with
,offenses under Section 302, read with Section 149, Section
307 read with 149 and Section 148 of the Indian Penal Code
for having formed themselves into an unlawful assembly with
the common object of demolishing the thatch of one Ram
Badal, Complainant P.W. 1 on 30th November 1967 at about
9.30 a.m. at Mohalla Alawalpur, Qasba Utraula, District
Gonda and for having committed the murder of Ram Harakh
alias Harkhey and Jagga, the brother and mother-in-law
respectively of said Ram Badal. It appears that Ram Badal
had applied on 2-1-66 to the Notified Area Committee,
Utraula for permission to construct a thatch on the parti
land. Ram Tahal, accused filed an ,objection petition on 6-
1-66 objecting to the construction of the thatch on the
ground that Ram Badal was constructing it on a public
highway, but when these objections were being enquired into
Ram Badal and Ram Tahal came to terms and entered into a
compromise by and under which it was agreed that Ram Badal
should leave six ft. wide passage between his house and the
house of Gharib across the way. Notwithstanding this
compromise it is alleged that accused Ram Tahal was not
happy and during the Dussehra festival in October 1966 when
he wanted to take the Ramlila Viman procession through that
passage Ram Badal raised an objection on the ground that
there was no precedent for taking such a procession. This
dispute was however settled by the intervention of the
Notified Area Committee which took an undertaking from the
accused Ram Tahal that he would only take the Ranilila Viman
procession through that way that year and in future when Ram
Badal had completed his construction, the Ramlila procession
could only be taken through the six feet wide passage that
was being left, and if he could not do so, through that
passage he will not have any right to take a procession.
This settlement does not appear to have pacified Ram Tahal
and it is stated that 10 or 11 days before the occurrence
namely on the 19th November 1966 or 20th November 1966 after
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Ram Badal
425
had constructed his Chhapar Ram Tahal asked him to pull it
down and threatened him with consequences if he did not do
so. Ram Badal however did not pull down his Chhapar. On
the 30th November 1966 at about 9.30 a.m. Ram Tahal, his
sons Prem, Mata Din, Pitamber, Pudki and his daughter Tara
came to the Chhapar of Ram Badal armed and began to pull it
down. Ram Tahal was armed with a Karpa, Prem and Pudki with
Ballams, Pitamber and Mata Din with Lathis and Tara with a
Bahangi which is a long pole on the two ends of which a
weight is bound by ropes and it is carried by putting the
pole on the shoulder. When these accused started pulling
the Chappar down Ram Badal’s brother Ram Harakh, the
deceased, who was then present resisted the move of the
accused and was beaten by the accused. On Ram Harakh
raising an alarm Ram Badal, Ori Lal son of Ram Harakh, Ram
Badal’s mother-in-law Jagga who lived nearby, Sukhraj P.W. 3
wife’s sister’s son of Ram Badal rushed to the scene. They
were also beaten by the accused. It is the case of the
prosecution that Ram Badal had a lathi which he wielded to
defend, but notwithstanding this, severe injuries were
caused on Ori Lal, Jagga and Ram Harak and they all fell
down and even after they had fallen down they had been
struck. Accused Prem is said to have struck Jagga with his
Ballam after she had fallen down. On Ram Badal and the
injured persons raising an alarm Kallu, P.W. 2, Kunnu P.W.
6, Gopi P.W. 7, Bhagirath or Bhagi P.W. 8, Sri Kishan Lal,
C.W. 1, Chhotu C.W. 2 and others came to the spot and on
their intervention the accused ran away carrying their
weapons with them. Jagga and Ram Harakh who were seriously
injured were taken to the Police Station, Utraula
accompanied by Sukhraj P.W. 3, while Ram Badal P.W. 1 went
there on Rikshaw. On the way to the Police Station Jagga
expired. Ram Badal, P.W. 1 lodged the First Information
Report at 10.32 a.m. on the same day at the Police Station
which was six furlongs away from the place of the incident.
In this report all the accused have been named. P.W. 13,
the Station House Officer before whom F.I.R. was lodged
started investigation and deputed constables for arresting
the accused and sent Ram Badal, Ram Harakh, Ori Lal and
Sukhraj to Utraula Dispensary where Dr. B. C. Paul, P.W. 12
medically examined and treated them. Subsequently on 5-12-
66 at about 3.15 p.m. Ram Harakh also died in the Hospital.
Accused Ram Tahal and Mata Din were arrested on the same day
i.e. 30th November 1966 at 3.30 p.m. Of these Ram Tahal was
carrying a blood stained Karpa and wearing a blood stained
Kurta while Mata Din was carrying a blood stained Lathi
whose pieces were Exhibits 9, 10 and 11. There, were
injuries found on both the above accused. Pitamber was
arrested in the evening of the same day at 8.45 p.m. Ram
Tahal and Mata Din were medically examined on 1-12-66 at the
District Jail, Gonda
426
and it was found that there were Ram Tahal 2 abrasion and
one Traumatic swelling on the back of the left hand below
the wrist. On Mata Din were found 3 abrasions, one abrased
contusion and one lacerated wound on the right leg middle
side. All the injuries on the accused were simple and could
have been caused by a blunt weapon like a Lathi and were
about two day,% old. Accused Prem and Pudki surrendered
themselves on 6-12-66 before the Court while Tara
surrendered on 23-12-66 after proceedings under Criminal
Procedure Code were taken against her.
The Additional Sessions Judge, Gonda convicted Ram Tahal of
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offence under section 148, 302/149, 307/149 I.P.C. and
sentenced him to death under Sec. 302 read with 149 to 10
years rigorous imprisonment under Sec. 307/149 and to 2
years under section 148 I.P.C. Accused Mata Din, Prem,
Pitamber, Pudki and Smt. Tara were convicted and sentenced
to life imprisonment under Sec. 302/149, 10 years rigorous
imprisonment under Sec. 307/149 and 2 years rigorous
imprisonment under Section 148.
Two appeals were filed against this-one by Ram Tahal and the
other by the rest of the accused. In the latter appeal
Pitamber and Pudki were given the benefit of doubt and were
acquitted. The appeals of Ram Tahal and Prem, Mata Din and
Tara were partly allowed and they were acquitted of the
offenses under Sec. 302 read with 149 and instead the first
two namely Ram Tahal and Prem were convicted under Sec.
304/149 and sentenced to life imprisonment. Appellants Mata
Din and Tara were convicted under Sec. 304/149 I.P.C. and
each of them sentenced to 10 years rigorous imprisonment.
Convictions and sentences under the other sections namely
under Sec. 307/149 and Sec. 148 I.P.C. against all the 3
accused were maintained but the sentences were directed to
run concurrently. Against this Judgment the accused have
appealed by special leave.
The first question that has been urged before us is that
none of the accused were charged for individual acts but
were found guilty under Sec. 304 Part I read with Sec. 149
which requires the presence of five persons who share the
common object, but since 3 of them were acquitted the
conviction of the appellant is illegal. It is true that
before See. 149 which prescribes vicarious or constructive
criminal liability for members of an unlawful assembly which
under Sec. 141 I.P.C. must consist of 5 or more persons can
be called in aid the Court must find with certainty, as
observed by Bose, J. in Dalip Singh & Ors. v. State of
Punjab(1), that there were at least 5 persons sharing the
common
(1) [1954] (Vol.V) S.C.R. 145.
427
object. However, as pointed out in that case "A finding
that three of them may or may not have been there betrays
uncertainty on this vital point and it consequently becomes
impossible to allow the conviction to rest on this uncertain
foundation." While saying so it was also pointed out that it
is not necessary that in every case 5 persons must always be
convicted before Sec. 149 can be applied, because it is
possible in some cases for Judges to conclude that though 5
were unquestionably there the identity of one or more is in
doubt, in which case a conviction of the rest with the aid
of Sec. 149 would be good. In such a case the Court must
say so with unerring certainty. A 5-Judge Bench of this
Court in Mahan Singh v. State of Punjab(1) has further
reiterated this principle where it was pointed out that like
Sec. 149 of the I.P.C. Sec. 34 of that Code also deals with
cases of constructive liability but the essential
constituent of the vicarious criminal liability under Sec.
34 is the existence of a common intention, but being similar
in some ways the two sections in some cases may overlap.
Nevertheless common intention, which Sec. 34 has as its
basis, is different from the common object of unlawful
assembly. It was pointed out that common intention denotes
action in concert and necessarily postulates a prearranged
plan, a prior meeting of minds and an element of
participation in action. The acts may be different and vary
in character but must be actuated by the same common
intention which is different from some intention or similar
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intention. It was also held in Krishna Govind Patil v.
State of Maharashtra(2), that it makes no difference whether
the acquittal of some of the accused, was by giving them the
benefit of doubt or on the ground that evidence was not
acceptable. In either case they cannot be said to have
conjointly acted with the accused who is said to have com-
mitted an offence. If they did not act conjointly with him
he could not have acted conjointly with them and he cannot
therefore be convicted under Sec. 302 read with 34.
The position in law is therefore clear and it appears to us
that in so far as the conviction and sentence of the
appellants under Sec. 148; 304 read with 149 or 307 read
with 149 are concerned they cannot be sustained on the
charge as framed against them which definitely named the 3
appellants as also the 3 acquitted accused as being members
of an unlawful assembly, who had in the prosecution of the
common object of such assembly, unlawfully demolished the
thatch of Ram Badal and were guilty of an offence of rioting
under Sec. 148 and of murder of Ram Harakh and Jagga under
Sec. 302 read with 149 of the attempted murder of Ram Badal,
Sukhraj and Orilal under Sec. 307 read with 149.
(1) [1962] Suppl.
(3) S.C.R. 848.
(2) [1964] (1) S.C.R. 678.
L500Sup.CI/72
428
While this is so the question is whether the convictions
under Sec. 302 and 307 can be sustained on the ground that
they had a common intention to commit the said offence. The
learned Advocate for the Appellant strenuously contends that
before the appellants can be convicted under the aforesaid
section read with Sec. 34 it must be shown that they had a
prior concert to commit the said offence which cannot be
concluded on the facts of this case. There is no doubt that
a common intention should be anterior in time to the
commission of the crime showing a prearranged plan and prior
concert, and though, it is difficult in most cases to prove
the intention of an individual, it had to be inferred from
the act or conduct or other relevant circumstances of the
case. This inference can be gathered by the manner in which
the accused arrived on the scene and mounted the attack, the
determination and concert with which the beating was given
or the injuries caused by one or some of them, "he acts done
by others to assist those causing the injuries the concerted
conduct subsequent to the commission of the offence for
instance that all of hem had left the scene of the incident
together and other acts which all or some may have done as
would help in determining the common intention. In other
words, the totality of the circumstances must be taken into
consideration in arriving at the conclusion whether the
accused had a common intention to commit an offence with
which they could be convicted. This Court had in Krishna
Govind Patil’s case already referred to earlier, held that
the prearranged plan may develop on ’he spot during the
course of the commission of the offence but the crucial
circumstance is that the said plan must precede the act
constituting the offence. If that be so before a Court can
convict a person under Sec 302 or read with 34 of the I.P.C.
it should come to a definite conclusion that the said person
had a prior concert with one or more persons named or un-
named for committing the offence.
This being the approach it now remains to be seen whether
the evidence in this case would justify a conviction of the
accused under Sec. 304 and 307 read with Sec. 34 of the
I.P.C. The High Court no doubt held that the witnesses did
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not give the origin of the fight and there was thus no
independent evidence to prove that the fight started,
because the appellants came and demolished part of the
thatch. The High Court goes on to observe as follows :
"To our mind, the quarrel being a sudden one
and the injuries having been caused in the
heat of passion, the case is covered by the
Fourth Exception to section 300 I.P.C. From
the injuries it cannot be said that the action
of the appellants was usually cruel. Each one
of the appellants appears to have caused not
more than
429
one or two injuries to the fighters on
complainant’s side but in view of the fact
that the spear injuries were caused on the
chest which caused the death of Smt. Jagga
and Ram Harakh, we think that the appellants
have committed culpable homicide not amounting
to murder and are punishable under section 304
Part I read with S. 149 I.P.C."
This finding in our view is not justified on the evidence.
The Trial Court on an appraisal of the evidence has held
that the accused Ram Tahal wanted to take the law into his
own hands and along with his children had embarked upon the
demolishing of the complainants Chhapar on that fateful day.
It was contended that if he had such an intention he would
have tried to demolish it immediately when it was been
constructed but we agree with the Additional Sessions Judge
that his no, doing so at that me when it was being
constructed does no’ preclude him from having that intention
subsequently. According to P.W. 1, accused Ram Tahal had
asked Ram Badal to pull it down and threatened him with
consequences on his failure to do so. The dying declaration
of Ram HaraKh also makes a reference about this dispute.
The finding of the Investigating Officer on his local
inspection shows that 2 Puras of Khar and 2 Korons were
lying in the ground and a portion of Chhapar was pulled out.
There was human blood found on the scene of the occurrence
and certain pieces of Lathi and Bahangi were found thereon
which were also sent to the Chemical Examiner and
Serologist . The dying declaration of Ram Harakh to which
the High Court does not make any reference much less gave
any reason why that could not be relied upon shows that the
marpit had started because the accused had pulled down the
Chappar and on being asked not to pull down the Chappar they
had struck him and other persons at that site. This
statement is quite consistent with the evidence of Ram Badal
and other eve witnesses of the occurrence that it was the
accused who were the aggressor and had come together armed
with the weapons to which we have made reference. This
would clearly indicate the common intention of all of them
to achieve their object of pulling down the Chhapar and to
do so with force, if resisted. If as a result of this
aggressive action by the accused who started beating Ram
Harakh and others including Ram Badal who came to defend
their Chhapar from being demolished they had a right of
private defence in exercise of which if they had caused some
injuries to the accused side that does not exculpate the
action of the accused. Even the High Court does not reject
the evidence that the accused Ram Tahal was armed with
Karpa, Prem was armed with Ballams, and Mata Din was armed
with Lathis and Tara armed with Bahangi and had caused the
death ,of two persons, and severe injuries to 3 others.
430
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It is true that according to the accused Ram Tahal the
dispute of the Chhapar had nothing to do with the occurrence
in question. Ms version in his statement under Sec. 342
before the Additional Sessions Judge was that when he got
knocked over a brick of the Thiha and he dug out the brick
Harkhey and Ram Badal ran to beat him. , He fell at the feet
of Harkhey as to why he was calling his men for 3 Chhataks
of brick bat. Thereupon Orilal, Harkhey, Ram Badal and
Jagga went to beat him with Lathis. He shouted and raised
an alarm when accused Mata Din and Prem came there with
lathis and Tara with a Bahangi and they defended themselves
and retreated to their Angan. In the Angan they had
received 3 or 4 blows and they struck out in self defence.
When they fell down Mata Din and he went to the Police
Station Utraula. It was there that Kunnu announced that
Jagga had expired. He (Ram Tahal) had a Karpa. Pitamber
was in school and Pudki was grazing cattle at that time.
Accused Mata Din and Prem had lathis. This version of Ram
Tahal would corroborate the prosecution evidence that Ram
Tahal was armed with a Karpa, Mata Din had lathi and Tara
had a Bahangi though as far as the weapon in Prem’s hand is
concerned he does not admit that he had a Ballam in his
hand. While we recognise that the statement of Ram Tahal
either incriminating the other accused or in respect of the
weapons in their hands, cannot be used against them, there
is ample justification for the Trial Court relying upon the
evidence of the prosecution witnesses in holding that Ram
Tahal had a Karpa, Prem a Ballam, Mata Din a lathi and Tara
a Bahangi. The nature of the injuries also to a large
extent corroborate the evidence of the eye witnesses upon
whom the Trial Court relied.
As already pointed out while the injuries on accused Ram
Tahal and Matadin were simple injuries which could be caused
by blunt weapon, they are consistent with the evidence of
P.W. 1 Ram Badal that he waived a stick in defence. As
against this, the injuries on the complainant and the other
injured on his side, indicate a much more severe action on
the part of the accused and that also with dangerous
weapons. Ram Badal had one lacerated wound on the front of
the chin which could have been caused by some blunt weapons
like a lathi and another punctured injury having the
appearance of a cross of two lacerated wounds each 3/4" X
1‘/2" on the left side of the back, with surgical emphysema
round the wound which according to the Doctor could have
been caused by some pointed weapon like the Karpa. Both
these injuries were about 2 hours old at the time of the
examination and could have been received about 9.30 a.m.
that day, namely the day of the incident.
431
Ram Harakh the deceased had 4 punctured wounds, two
lacerated and one abrasion. The place where these injuries
were given was : (1) a lacerated wound on the left side of
the skull, (2) punctured wound on the left hypochondrium, 4"
below the nipple, (3) punctured wound on the left side of
the chest below the axilla with surgical emphysema around
the wound and irregular and ill-defined borders, (4)
punctured wound on the upper part of the back in between the
two axilla with surgical emphysema around the wound, (5)
punctured wound in the shape of a cross of two lacerated
wounds each 4/5", (6) abrasion on the right mandibular angle
and (7) a lacerated wound on the back of the right ring
finger at the middle. In the opinion of the Doctor,
injuries 2, 3, 4 and 5 were grievous and had been caused by
a pointed blade with cross section which could be the blade
of Karpa. Injuries 1, 6 and 7 could be caused by a blunt
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weapon like a lathi.
Orilal had 4 punctured wounds and 2 lacerated wounds. These
were : (1) lacerated wound on the left side of the skull,
(2) punctured wound on the left side of the face, (3)
punctured wound on the front of the neck on the back of the
chin, (4) lacerated wound on the cleft between the left
middle and ring fingers, (5) punctured wound with appearance
of a cross of two lacerated wounds on the chest. The
margins were ill-defined, (6) punctured wound with the
appearance of a cross of two lacerated wounds each 1/2" X
1/10" on the left side of the back at the middle near the
spine with surgical emphysema round the wound. The opinion
of the Doctor was that injuries 2, 3, 5 and 6 could be
caused by a pointed blade which could be a blade of Karpa;
the rest of the injuries could be caused by a blunt weapon
like lathi. These injuries were also about 2 hours old.
On Sukhraj P.W. 3 were found 2 punctured wounds and one
bruise. These are: (1) punctured wound having the
appearance of a cross of two lacerated wounds each 1/2" X
2/5" on the front of the left forearm, margins ill-defined
and slightly inverted, (2) punctured wound having the
appearance of a lacerated wound each 1/5"X 1/ 10" on the
back of the left forearm and (3) a bruise 4" X 1" on the
right side of the back in the middle. The medical evidence
is that while injury No. 3 was simple injuries 1 & 2 were
caused by some pointed blade with 4 edges and square cross
section like Karpa. These injuries were also 2 hours old
and could have been received at about 9.30 a.m. on the day
of the incident.
On the deceased Jagga there were two abrased contusions one
on the upper part of the nose and the other below the left
eye. A contusion on the left lower jaw and a stab wound
with sharp margins 1/2" X 1/3" chest deep, below the
inferior angle
432
of the left scapula and 1" towards the outer part. Internal
examination had revealed that in the left lung on the upper
part of the lower lobe there was a stab wound 1/2" X 1/8"
through and through around which there was 6 oz. of
coagulated blood and on the left ventricle of the heart
there was a stab wound 1/3" X 1/8". While the first 3
injuries had been caused by a blunt weapon like a Lathi
injury No. 4 according to Doctor Gupta was caused by some
sharp pointed weapon which could be a Ballam.
These injuries clearly show that they must have been given
by Ram Tahal who had a Karpa, Prem who had a Ballam and
Matadin who had a Lathi. They caused injuries to five
persons on the opposite side; on 4 of them severe injuries,
of these two died. There is also evidence to show that Tara
was wielding a Bahangi and whether any of the injuries can
be traced to her or not she was acting in concert with the
others in furtherance of their common intention.
Further when on the shouts for help given by the complainant
and the injured, others came to their rescue, all of them
ran away together. There is no justification therefore for
holding as the High Court did that there was no evidence to
show as to how the quarrel started. In our view the
totality of the circumstances indicate without doubt the
inference that there was a preconcerted plan and a common
intention to remove the thatch and to attack any person if
he resisted. The accused in the furtherance of that common
intention began to remove the Chhapar and when Ram Harakh
obstructed, they beat him and others who came to resist
their attack and aggression.
On these findings the Trial Court convicted them of the
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offenses of rioting, murder and attempted murder but since
two of the accused had been totally acquitted of all charges
and the others have been acquitted of the charge of murder
and there is no appeal against these acquittals we are
unable to say whether these findings by the High Court are
justified. Nevertheless the appellants are clearly guilty
of offenses under Sec. 304 Part I read with Sec. 34 and also
Sec. 307 read with 34 and accordingly we so convict them and
substitute these convictions for the convictions of which
they were held guilty by the High Court which we have set
aside. We however maintain the sentences awarded
433
to them. On these findings Ram Tahal and Prem are sentenced
to life imprisonment under Sec. 304 Part I read with 34
while Matadin and Smt. Tara are each sentenced to 10 years
rigorous imprisonment for the same offence namely 304 Part I
read with Sec. 34 I.P.C. Each of them is further sentenced
to 10 years rigorous imprisonment for offence under Sec. 307
read with Sec. 34 I.P.C. The sentences on each of them are
directed to run concurrently. The appeal is accordingly
dismissed with the said modifications.
V.P.S.
434