JUDGMENT Bennett and Ghulam Hasan, JJ. - These are appeals by five men, all Brahmans and said to be connected, who were convicted by the Sessions Judge of Sitapur u/s 147 and Sections 323, 325 and 302 read with Section 149 of the Indian Penal Code. They were each sentenced to various periods of rigorous imprisonment for the lesser offences and to transportation for life for the offence u/s 302 read with Section 149, all the sentences to run concurrently. 2. The Appellants were charged with being members of an unlawful assembly, the common object of which was to beat three Chamars named Ranjit, Ninja and Dubar, on the 24th September, 1943, and with having caused simple and grievous hurt to Dubar and Ranjit, and Ninja's death in prosecution of this common object. They were found guilty of committing these offences. 3. The oldest Appellant, Mata Prasad, whose age is given as 60, is a resident of Lashkarpur where the three Chamars also lived. The youngest Appellant, Raja Ram, whose age is given as 18, is his sister's son. The Appellants Maiku Lal and Lallu are Mata Prasad's first cousins, being his maternal uncle's sons. The last Appellant. Jagat Narain was alleged by the prosecution to be the son of Mata Prasad's wife's sister but the Sessions Judge thought that this was not proved. 4. Maiku Lal and Lallu also reside in Lashkarpur. Raja Ram and Jagat Narain, though residents of other places, are said to have been living temporarily as Lashkarpur on the 24th September. 5. Of the three Chamars, Ranjit and Ninja were brothers, and Dubar is Ranjit's son-in-law. 6. According to the prosecution evidence a day or two before the occurrence Mata Prasad tried to persuade Ranjit, who had been previously in his service, to plough for him. Ranjit had refused to do so, and Mata Prasad is said to have gone away threatening to beat him unless Ranjit agreed to work for him again. 7. All the five accused are said to have come about an hour after sunrine on the 24th September to the place where Ranjit and Ninja were winnowing their paddy. Mata Prasad again asked Ranjit to plough for him. On Ranjit's refusal there was at first some angry talk and then all the five Appellants, who are said to have been armed with iron ringed lathis, fell upon the two brothers. Mata Prasad again asked Ranjit to plough for him. On Ranjit's refusal there was at first some angry talk and then all the five Appellants, who are said to have been armed with iron ringed lathis, fell upon the two brothers. Dubar came from his house on hearing the alarm and was also beaten. The Chamars had lathis handy and plied them in self defence, but were overpowered. When the Appellants left the scence Ninja and Dubar were lying unconscious while Ranjit had severe injuries, but was conscious. 8. All three men were carried to the police station at Misrikh, about three miles away, and a report was made there by Ranjit at 10 15 a.m. It has been suggested that there was undue delay in making the report, but having regard to the circumstances we do not think that it can be said that there was any unnatural delay in making arrangements to take the injured men to the police station. They were sent at once to the hospital at Misrikh, and Ninja died there the same night. Dubar is said to have remained unconscious for two or three days, and on the fifth day after the occurrence his condition was considered so serious that on the advice of the medical authorities a declaration by him was recorded by a Magistrate. 9. Two of the Appellants, Mata Prasad and Jagat Narain, were arrested the same day and injuries were found on their persons. Mata Prasad explained his by saying that a bullock cart, in which he was sitting had overturned. Jagat Narain is employed as an octroi Moharrir at Misrikh. He denies being at Lashkarpur on the day of the occurence, and he said that he received his injuries by a fall from a bicycle which he was learning to ride. 10. None of the injuries of Mata Prasad or Jagat Narain is very serious. The medical evidence shows that the doctor was of opinion that they had probably been caused by a blunt weapon, though he admitted the possibility of their being caused in the way alleged by Mata Prasad and Jagat Narain. 11. The other Appellants could not be found and proceedings under Sections 87 and 88 of the Code of Criminal Procedure were taken against them. Maiku Lal surrendered in Court on the 9th October. It is not shown when the others surrendered. 12. 11. The other Appellants could not be found and proceedings under Sections 87 and 88 of the Code of Criminal Procedure were taken against them. Maiku Lal surrendered in Court on the 9th October. It is not shown when the others surrendered. 12. Ninja's head was found fractured in two places. There were altogether three contused wounds on his head. Other injuries were found on his chest, back, right knee and left arm. 13. Dubar had eight injuries, all but one being simple The grievous injury was a wound on the lower jaw bone. 14. Ranjit had twelve injuries, all simple except one, the grievous hurt being to his left middle finger. 15. The prosecution witnesses, with one exception are Chamars. The exception is Jai Jai who is a Pasi. It has been argued that the prosecution witnesses are not independent, but it is natural in the circumstances that most of them should be Chamars. There has been no contention that there are any such discrepancies or contradictions in the evidence of the eye-witnesses as to suggest that the story of the occurrence was concocted. 16. The evidence of Ranjit has been attacked because of some inconsistency in regard to the story about his being approached by. Mata Prasad a day or two before. In his report and also in the Magistrate's Court he said that Mata Prasad came to him two days before, but in the Sessions Court be said that it was one day before. We do not think that this discrepancy is very serious Ranjit gave evidence in the Sessions Court in June, 1944, and his recollection of such details was not unnaturally hazy. The occurrence took place on a Friday, but Ranjit said that Mata Prasad came to him not on a Wednesday as he had stated in the Magistrate's Court, but on a Saturday. This is clearly wrong. It is not unnatural that a witness of his position should make such mistakes. We see no reason merely on this account to reject his story about Mata Prasad coming to him a day or two before. 17. The evidence of Dubar has been attacked chiefly on account of the statement made by him (Ex 14) while he was in hospital. As the Sessions Judge observes, this statement was not a dying declaration. It was not therefore admissible on behalf of the prosecution. 17. The evidence of Dubar has been attacked chiefly on account of the statement made by him (Ex 14) while he was in hospital. As the Sessions Judge observes, this statement was not a dying declaration. It was not therefore admissible on behalf of the prosecution. It could only be used by the defence for the purpose of contradiction. Reliance has been placed upon it for this purpose because Dubar made some curious statements which do not accord with the prosecution story. He implicated only Mata Prasad and Raja Ram and he said that the occurrence had taken place eight days before, though his statement was taken on the 29th September, five days after the incident. He also said that his teeth had been knocked out, and this is clearly false. We are entitled, we consider, in these circumstances, to question the view of the Magistrate who recorded his statement that he was in a proper mental condition to make a statement. The Sessions Judge was doubtful whether Dubar could have been in his proper senses. We think that this doubt is well founded. It is clear that Dubar was considered to be in a serious condition; otherwise his statement would not have been recorded, Further the evidence shows that he had been unconscious for two or three days. We are not prepared to attach any importance to this statement. 18. There is, we think, no improbability in the evidence of motive. The evidence suggests that the object of the Appellants was primarily to induce Ranjit to come and work for Mata Prasad, but upon his repeated refusal to do so, the Appellants decided to teach him and his brother a lesson They may well have had this possibility in their minds before they came. Their number, we think, supports this view. 19. We have mentioned that the Sessions Judge thought that the relationship between Jagat Narain and Mata Prasad had not been established. This finding was due to Ranjit's inability to give details of the relationship stated by him. He was not able to give the name of Jagat Narain's father. But as Jagat Narain is a resident of the Hardoi district, there is nothing unnatural in this. This finding was due to Ranjit's inability to give details of the relationship stated by him. He was not able to give the name of Jagat Narain's father. But as Jagat Narain is a resident of the Hardoi district, there is nothing unnatural in this. If Jagat Narain had come to stay temporarily with his uncle, Mata Prasad, Ranjit may very well have known that relationship existed--indeed the exact relationship that existed--without being able to give such details. It is, we think, significant that Jagat Narain himself made no attempt to deny the relationship, nor did he produce any evidence to disprove it. We see no reason therefore to doubt its existence. 20. Jagat Narain, as we have said, is an octroi Moharrir working at Mirikh, three miles away, and his case is that he is on duty there day and night and he could not have gone to stay even for a short time with Mata Prasad at Lashkarpur. We doubt whether his duties would make this impossible. It is in evidence that there is a pound Moharrir only some 40 paces away from octroipest, and we feel little doubt that Jagat Narain could have made arrangements to stay the night with Mata Prasad at Lashkarpur or to have visited him there early in the morning. 21. Jagat Narain, however, produced evidence to show that he had issued an octroi receipt at 7 a.m. on the morning of the 24th September. The original receipt has not been produced, but the counterfoil was produced in the Court below, and it purported to show that the receipt had been issued by Jagat Narain at 7 a.m Neither the receipt nor the counterfoil is before us and it is difficult to express any definite opinion as to whether it must have been written at this time or whether it might have been filled in as regards the time or other details later. But we do not feel that this evidence conclusively establishes the alibi, particularly as the original receipt is not forthcoming. The Sessions Judge thought that as no more receipts were issued before 10 a.m. Jagat Narain might have been away between these hours. But we do not feel that this evidence conclusively establishes the alibi, particularly as the original receipt is not forthcoming. The Sessions Judge thought that as no more receipts were issued before 10 a.m. Jagat Narain might have been away between these hours. We do not know exactly the time of the occurrence, and it may have been some time after 7 a.m. The sun would have risen on the day of the occurrence about 7 a.m. (standard time), and the time of the occurrence is given as about an hour after sunrise. 22. There is some other evidence which was produced to support Jagat Narain's alibi, but that evidence is still weaker, and we are not prepared to hold that the alibi has been proved. 23. As regards the alibis of the other Appellants little stress has been laid upon them, and we agree with the Sessions Judge that they too have not been proved. 24. It was suggested that Jagat Narain might have been falsely implicated because in the previous May a complaint had been made u/s 145 to the Code of Criminal Procedure by one Ramesh Chandra against Raja Ram and another man who does not appear in the present case. Ramesh Chandra is Jagat Narain's cousin. 25. We do not think that Jagat Narain would have been implicated falsely on this account. His injuries point strongly to his participation in the occurrence. Though possible, it is not in our opinion likely that such injuries as he received, including the two injuries in different places on his head, would have been caused by a fall from a bicycle. Moreover none of the injured persons was in a condition to concoct a false story and arrange for evidence to support it before the first report was made, and there is no indication that anyone was likely to have done this on their behalf. The only persons mentioned in this connection are a man named Durga Singh, whose sub-tenant Ranjit is said to be, and the witness Jai Jai. It is, however, not proved that Ranjit is Durga Singh's sub-tenant. It may be that Durga Singh has some interest in the case and may be inimical to the Appellants, but this by itself is not sufficient to prove that he arranged for them to be falsely implicated. It is, however, not proved that Ranjit is Durga Singh's sub-tenant. It may be that Durga Singh has some interest in the case and may be inimical to the Appellants, but this by itself is not sufficient to prove that he arranged for them to be falsely implicated. As regards Jai Jai it is shown that in 1941 the brother of the Appellant Maiku made a report of certain trivial offences against this witness and other persons, but no case followed. 26. Much of the argument in the case has been with reference to the liability of the Appellants u/s 302 read with Section 149. Counsel have argued that it has not been shown which of the Appellants caused the fatal injuries, and that there is nothing to indicate a common intention to kill Ninja. Counsel often attempt in cases of this kind to rely on the irrelevant provisions of Section 34 and to ignore the relevant provisions of Section 149. 27. Various cases were cited, but most of them can be distinguished. The oldest case referred to was a Calcutta case of 1873, The Queen v. Sabid Ali (1873) 20 Cr.W. Rep. 5. It was held in that case by a Full Bench (with one dissentient) that Section 149 is not intended to subject a member of an unlawful assembly to punishment for every offence which is committed by one of its member during the time they are engaged in the prosecution of the common object. To bring a case within Section 149 the act must be done with a view to accomplish the common object of the unlawful assembly, or it must be proved that the offence is one which the accused knew would be likely to be committed in prosecution of the common object. We do not in any way dissent from these observations, but we see no reason to think that the Appellants did not know, when they attacked these three Chamars, that murder was likely to be committed in prosecution of their common object. 28. The next case cited was a case of this Court, Raghunandan v. King Emperor (1934) 11 O.W.N. 1456. In this case the common object was the same as in the present case. 28. The next case cited was a case of this Court, Raghunandan v. King Emperor (1934) 11 O.W.N. 1456. In this case the common object was the same as in the present case. One of the members of the unlawful assembly thurst a spear into the abdomen of a member of the opposite party and a Bench of this Court held that the other members of the assembly could not be imputed with the knowledge that murder was likely to be committed. The facts and circumstances of each case have to be considered. Our own view is that generally such knowledge may be imputed to other members of the unlawful assembly when a spear has been clearly brought for a purpose connected with the common object, but the circumstances may negative this view. 29. In a case of the late Judicial Commissioner's Court, Barkau Singh v. Emperor AIR 1920 Oudh 152, it was said that where the members of an unlawful assembly animated with the common intention of causing grievous hurt cause death, and it is impossible to ascertain by which of the members of the assembly death was caused, but it was found that one of them was immediately responsible for one of the deaths caused, that member is guilty of rioting and of culpable homicide u/s 304 and the remainder are guilty of rioting and causing grievous hurt u/s 325. With all respect we feel some doubt about the soundness of the principle laid down in this case, for it suggests rather that the liability of each accused must be decided with reference only to the common intention and not with reference to the likelihood of some other offence or offences being committed in prosecution of the common object 30. In the Madras case, Manakkal Kumaran and Others, AIR 1942 Mad 446 two men were stabbed by members of an unlawful assembly, other members of which had apparently no reason to think that such acts would be committed, these acts of stabbing not having been committed in prosecution of the common object, but in prosecution of the private object of the murderers. This is a distinction which has been drawn in some other cases, such as Ahmed v. Emperor AIR 1927 Sind 108 where it was found that the fatal blow with an axe was not struck in prosecution of the common object, and Mohammad Ishag Madari v. Emperor AIR 1942 Lah. 245, where the stabbing of a Sub-Inspector was held to be an isolated act of an individual rioter. 31. In the present case we do not consider it possible to regard the fatal blows on Ninja's head as isolated acts of some members of the unlawful assembly which could not have been anticipated by the other members Where five or more persons armed with lethal weapons attack a smaller number of persons with the common object of administering to them a sound beating they must, we consider, be saddled with the knowledge that fatal blows are likely to be struck if passions are excited which cannot be controlled as unfortunately is very often the case. Such incidents are of almost every day occurrence. 32. Two other points may be mentioned in this connection. The first is that the evidence is discrepant on the point whether the injured Chamars were struck after they had fallen down. On this point the Sessions Judge held that Ranjit was not beaten after he had fallen, while the other two were. This finding may be justified, but the evidence on the point is discrepant and we think the facts somewhat doubtful, though having regard to the number of injuries and their nature it is certainly probable that some injuries were inflicted on Ninja after he had fallen. But in a case u/s 149 we do not consider this question very material. 33. In support of the view we have taken we would refer to the two Bench cases of the Lahore High Court, AIR 1939 245 (Lahore) and AIR 1940 53 (Lahore) . From the first case we take the following observations: "Once an assembly has become unlawful, then all things done in the prosecution of the common unlawful object of that assembly are chargeable against every member thereof. The liability of every member extends not only to the acts intended by all to be done, but also to those offences which were likely to be committed in achieving the common object." 34. The liability of every member extends not only to the acts intended by all to be done, but also to those offences which were likely to be committed in achieving the common object." 34. In the second case one of the rioters plunged a spear into the abdomen of the deceased. It was said: "This offence was committed when the unlawful assembly was prosecuting its common object which was obviously unlawful. In these circumstances every member of the assembly was equally responsible under the terms of Section 149 I.P.C. It is immaterial whether any member individually intended to commit that offence or not. "Intention" is dealt with in Section 34 of the Indian Penal Code, and can be considered in those case only which are governed by it." 35. The law is, if we may say so with respect, in our opinion correctly and clearly expounded in these cases. 36. Learned Counsel also raised the question whether the case does not fall under the Fourth Exception to Section 300, culpable homicide having been committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel. But the further condition that the offenders did not take undue advantage or act in a cruel or unusual manner has also to be satisfied. We might perhaps agree that the Appellants did not act in a cruel or unusual manner, but it is impossible to hold that they did not take undue advantage of the Chamars. The latter were outnumbered by five to three. It is argued that as Mata Prasad is an old man of 60 and his nephew Raja Ram is a young man of 18 their participation may be discounted, but it is a matter of experience that in cases like this old men of 60 and young men of 18 can inflict serious injuries. We are not therefore prepared to hold that the case falls within this Exception. 37. For these reasons we hold that all the Appellants were rightly convicted and rightly sentenced and we dismiss their appeals.