Judgment 1. All the appellants have been convicted under S. 302 of the Indian Penal Code (the penal Code) for the murder of Dr. Phani Bhusan Sikdar (Dr. Sikdar) and have been sentenced to imprisonment for life. All the appellants, except appellant No. 2, have also been found guilty under S. 147 of the Penal Code and they have been sentenced to one year Rigorous Imprisonment. Appellant No. 2 has been found guilty under S. 148 of the Penal Code and has been sentenced to two years Rigorous Imprisonment. The sentences have been ordered to run concurrently. 2. At about 9.30 p.m. on 18-1-1974 PW 5 Uday Bhanu Ojha lodged an information with the police that the appellants had caused the death of Dr. Sikdar, According to the prosecution on 18-1-1974 at about 8.45 p.m. Dr. Sikdar was returning with PW 5 from the house of PW 8 where he had gone to attend his ailing wife. When PW 5 and Dr. Sikdar came near the railway track in village Haria Joba, the appellants variously armed suddenly appeared on the scene and surrounded Dr. Sikdar and shouted Maro-Maro. Appellant No. 1, Yogendra, hit Dr. Sikdar with lathi and Dr. Sikdar fell down. PW 5 in order to save themselves hit appellant No. 1 on the head by a lathi which appellant(?) No. 5 was carrying, whereupon appellant No. 2, Surendra wielded a bhala on PW 5 which the latter warded off by wielding his lathi. Appellant No. 2 thereafter hit Dr. Sikdar with the bhala on the neck and thereafter appellants who were variously armed also assaulted. Dr. Sikdar died as a result of the injuries. PW 5 went to the house of PW 8 and informed about the occurrence whereupon PW 8 advised PW 5 to go to the police station and lodge the information. PW 5 thereafter went to the police station and lodged the information. 3. In the first information report it was stated that PWs 1 and 2 had their shop near the house of PW 8 and they were going with PW 5 and Dr. Sikdar to Chatatand Bazar at Kenduadih. According to the prosecution, they also saw the occurrence and supported the case of the prosecution in the statements recorded by the Investigating Officer. Sikdar to Chatatand Bazar at Kenduadih. According to the prosecution, they also saw the occurrence and supported the case of the prosecution in the statements recorded by the Investigating Officer. However, during trial both of them did not support the case of the prosecution and the trial court allowed the prosecution to cross-examine them. On the basis of the evidence produced by the prosecution the trial court found the appellants guilty of the charges. We will, therefore, have to see whether besides PW 5, the evidence of PWs 1 and 2 can also be relied upon as eyewitnesses. 4. Autopsy on the dead body of Dr. Sikdar was held by PW 10, Dr. T. N. Singh. He found a number of multiple incised wounds of different sizes and other injuries on the various parts of the body of Dr. Sikdar. According to his opinion, the death of Dr. Sikdar was caused by shock and haemorrhage due to the injuries inflicted on him. 5. Mr. Sinha, learned counsel appearing on behalf of the appellants submitted that the dead body of Dr. Sikdar was found near the railway track and his death occurred as he was run over by a train. This argument has been made as according to the first information report the occurrence occurred when Dr. Sikdar and PW 5 reached near the railway line on the north of Kenduadih colliery. It was submitted by Mr. Sinha that the possibility of Dr. Sikdar being run over by a train cannot be ruled out. In cross-examination PW 10 stated that the injuries that he found on the person of Dr. Sikdar could have been caused by Targi, Sword, etc., but the same could not have been caused if Dr. Sikdar was run over by a train. From the perusal of the evidence of PW 10 and the post-mortem report, we are satisfied that Dr. Sikdar died due to the injuries inflicted on him and his death was not due to the fact that he was run over by a train. 6. It appears from the record that there was enmity between Dr. Sikdar and appellants with regard to a tank. In a proceeding under S. 145 of the Code of Criminal Procedure (the Code) possession of Dr. Sikdar over the tank was declared a few days before the occurrence. 6. It appears from the record that there was enmity between Dr. Sikdar and appellants with regard to a tank. In a proceeding under S. 145 of the Code of Criminal Procedure (the Code) possession of Dr. Sikdar over the tank was declared a few days before the occurrence. It was submitted on behalf of the appellants that PW 5 was a servant of Dr. Sikdar and PW 5 admitted in his evidence that after the death of Dr. Sikdar he was in service of the brother of Dr. Sikdar. It was urged that evidence of PW 5 ought not be believed as he was a highly interested witness. The ground of his interestedness, according to Mr. Sinha, was that he continued to be in the service of the brother of Dr. Sikdar after the death of Dr. Sikdar. The brother of Dr. Sikdar was present in the trial court when PW 5 was examined and PW 5 had deposed against some of the appellants in favour of Dr. Sikdar in a case under S. 379 of the Penal Code. We do not find any reason as to why PW 5 should be disbelieved only because he chose to serve the brother of Dr. Sikdar after the latters death. It appears from his evidence that he was resident of Madhya Pradesh and had come to Dhanbad district for his livelihood. That being the position when after the death of Dr. Sikdar his brother offered to retain him and he agreed to serve him, the evidence of PW 5 cannot be discarded on this ground. Further, he cannot be disbelieved also on the ground that he had deposed against some of the appellants in a theft case. He admitted that he was in the service of Dr. Sikdar and, therefore, he might have had opportunity of witnessing the occurrence of theft. He, therefore, deposed in that criminal case. This also, in our opinion, cannot be a ground for discarding his evidence. 7. Mr. Sinha, submitted that PW 5 after the occurrence instead of going to the house of Dr. Sikdar or to the police station or to the nearby tea shops went to PW 8, who was a wrestler, particularly when the relation between PW 8 and Dr. Sikdar was that of patient and doctor. It has come in evidence of PW 5 that in the house of Dr. Sikdar or to the police station or to the nearby tea shops went to PW 8, who was a wrestler, particularly when the relation between PW 8 and Dr. Sikdar was that of patient and doctor. It has come in evidence of PW 5 that in the house of Dr. Sikdar the only male member was his son aged about 12-13 years. Dr. Sikdar and PW 5 had gone to the house of PW 8. We do not find any thing unnatural in the conduct of PW 5 to go to the house of PW 8 first to inform about the occurrence because Dr. Sikdar visited him last. 8. It was submitted by Mr, Sinha that according to PW 1 some tea shops were open and according to PW 5 he went to the house of PW 8 by crossing the railway yard and the railway cabin. He crossed the yard office while going to the house of PW 8. On the basis of these facts, Mr. Sinha urged that if the occurrence had taken place in the manner alleged by the prosecution, on hearing, hulla the persons who were at the tea shops or in the railway yard or in the yard office or in the cabin would have arrived on the spot; but the prosecution has not examined any independent witness in support of the evidence of PW 5. PW 5 in his evidence has stated that he did not meet anybody in the railway yard or in the yard office while he was going to the house of PW 8. On a suggestion put by the defence he stated that he could not say if in the yard office, there were 100 to 150 persons. He further stated that he crossed the places by running and he did not go to the yard office out of fear. There is no positive evidence that there were persons in the yard office or in the railway cabin. In absence of any such evidence it cannot be presumed that there were persons at those places at the time of occurrence. PW 1 has stated in his evidence that about 20 to 25 persons always work in the railway yard and the place of occurrence was in front of the railway yard. There is no evidence as to what was the length of the railway yard. PW 1 has stated in his evidence that about 20 to 25 persons always work in the railway yard and the place of occurrence was in front of the railway yard. There is no evidence as to what was the length of the railway yard. There is no evidence as to whether 20 to 25 persons were working at the time of occurrence in front of the place of occurrence, and whether they were within the hearing distance from the place of occurrence. For these reasons it cannot be held that as nobody appeared from the railway yard, cabin or yard office, the statement of PW 5 should not be believed. PW 2 stated in his evidence that about 30 feet to 40 feet away from the place of occurrence there were tea shops and also quarters of labourers and in the tea shop PW 2 met PW 1. PW 1 in his evidence did not say that he went to any tea shop where he met his father, PW 2. Further, there is no evidence that anybody was present in the tea shop at the time of occurrence. The occurrence was in this month of January at about 8.45 p.m. Even if there was anybody nearby, because of the fact that it was a cold wintery night and the place was lonely, it was not unnatural that nobody came. The submission that as no independent witness was examined by the prosecution its case should not be believed cannot be accepted. 9. The evidence of PW 5 was also criticised on the ground that he was not very intimate with the appellants and, therefore, it was not possible for him to identify them in the night. It has come in evidence that the litigations between Dr. Sikdar and the appellants were going on for a long time and PW 5 was the employee of Dr. Sikdar from two years prior the date of occurrence. It has also come in evidence that PW 5 had deposed against some of the appellants who were accused in a theft case. That being the position, there was every possibility of PW 5 knowing the appellants from before. PW 1 has stated in his evidence that there was electricity near the place of occurrence. It has also come in evidence that PW 5 had deposed against some of the appellants who were accused in a theft case. That being the position, there was every possibility of PW 5 knowing the appellants from before. PW 1 has stated in his evidence that there was electricity near the place of occurrence. PW 12 said that there were electric poles with bulbs about 90 feet away on both the northern and southern sides from the place of occurrence. There was electric light. PW 5 claimed to have identified the appellants in the electric light. That being the position the submission made on behalf of the appellants that PW 5 could not have identified the appellants has no substance. 10. So far PW 2 is concerned he did not support the case of the prosecution of actual assault. He did not see the appellants assaulting Dr. Sikdar. He, however, stated that he along with his son, PW 1, Dr. Sikdar and PW 5 was coming from Jogdih to Kenduadih Bazar. While they reached near the railway track which was in between Gonudih and Kenduadih Bazar, he saw eight or nine persons variously armed coming from behind. He, however, admitted that one of those persons assaulted his son, PW 1, who was treated at Kenduadih Hospital. PW 9 was the doctor. In view of the evidence of PW 2, we do not rely on him with regard to actual assault of Dr. Sikdar. 11. According to the prosecution PW 1 was another eye-witness. In examination-in-chief he stated that he suddenly heard a hulla and thereafter he saw nothing. In cross-examination by the prosecution, he admitted that he had stated before the Investigating Officer that nine armed persons surrounded Dr. Sikdar and that they assaulted Dr. Sikdar and he died at the spot. He also stated that one of them assaulted him (PW 1) with farsa and he was treated at Kenduadih Hospital. It has been held by the Supreme Court that even if the prosecution witness is allowed to be cross-examined by the prosecution, his evidence is not washed off the record. It is for the court to decide whether the witness thoroughly stands discredited and if so as a matter of prudence his evidence should be discarded. PW 1 admitted the question put by the prosecution about his statements made before the Investigating Officer. It is for the court to decide whether the witness thoroughly stands discredited and if so as a matter of prudence his evidence should be discarded. PW 1 admitted the question put by the prosecution about his statements made before the Investigating Officer. In cross-examination by the appellants he stated that the place of occurrence was in front of the railway yard. He has also admitted that he was assaulted by one of the persons who had surrounded and assaulted Dr. Sikdar. He, therefore, was a person who was himself assaulted by the assailants of Dr. Sikdar. His presence at the place of occurrence is, therefore, proved. In evidence he did not name the appellants. It appears that the prosecution also did not ask him the names of the appellants. Therefore, from his evidence it is not proved that the appellants were the assailants of Dr. Sikdar. But this much is established from his evidence that nine persons surrounded Dr. Sikdar at the place of occurrence and he died at the spot because of the injuries caused to him by them. This part of the evidence of PW 5 is corroborated by PW 1. 12. The case of the prosecution that Dr. Sikdar had gone to the house of PW 8 to attend his ailing wife and while returning he was assaulted has been corroborated by PW 8. So far PW 8 is concerned it was urged on behalf of the appellants that he was an accused in a murder case and enmity was alleged between him and appellant, Yogendra. The evidence of PW 8 is with regard to the visit of Dr. Sikdar to his house on the fateful night. There is no material to conclude that at the instance of PW 8, the appellants were implicated. Further, if that was the case, only appellant, Yogendra should have been implicated and not others. Moreover, PWs 1 and 2 also stated that they were following PW 5 and Dr. Sikdar while returning from their shop and on the way nine persons accosted them. 13. The next question that arises is whether the prosecution has proved that Dr. Sikdar died because of the injuries inflicted on him by all the appellants. All the appellants were charged under Sec.302 of the Penal Code. Sikdar while returning from their shop and on the way nine persons accosted them. 13. The next question that arises is whether the prosecution has proved that Dr. Sikdar died because of the injuries inflicted on him by all the appellants. All the appellants were charged under Sec.302 of the Penal Code. All the appellants except Surendra were charged under S. 147 of the Penal Code and Surendra was charged under S. 148 of the Penal Code. In the first information report PW 5 stated that appellant No. 1, Yogendra first assaulted Dr. Sikdar with a lathi and then appellant No. 2. Surendra assaulted him with a farsa and thereafter other appellants assaulted him with various arms, namely, lathi, bhala etc. In his evidence PW 5 stated that appellant No. 1, Yogendra, assaulted Dr. Sikdar who fell down and thereafter appellant No. 2, Surendra hit Dr. Sikdar on his neck by a farsa. Thereafter all the appellants murdered him. PW 5, therefore, specifically named two persons who individually assaulted Dr. Sikdar. He has stated that appellant No. 2, Surendra, was carrying a farsa and with that he hit Dr. Sikdar. So far appellant No. 1, Yogendra, is concerned according to PW 5 he was armed with a lathi. Although PW 5 has stated that other appellants were also armed with lathi, farsa, bhala etc. but he has not stated as to which arm which appellant was carrying or with which arm the other appellants assaulted Dr. Sikdar. That being the position we are to consider on the basis of the evidence whether all the appellants can be held guilty for the murder of Dr. Sikdar. 14. It was contended on behalf of the appellants that from the evidence of PW 5 it cannot be held that all the appellants took part in murdering Dr. Sikdar and that as no charge was framed under Sec.149 of the Penal Code, recourse cannot be taken to that section for finding all the appellants guilty of murder. It was submitted that that being the position, the court below ought to have given finding in respect of each of the appellants with reference to the role played by each of them. It was also urged that court below did not find them guilty with the help of S. 34 of the Penal Code. It was submitted that that being the position, the court below ought to have given finding in respect of each of the appellants with reference to the role played by each of them. It was also urged that court below did not find them guilty with the help of S. 34 of the Penal Code. In reply, it was urged on behalf of the respondent that it was not necessary to frame charge, under S. 149 of the Penal Code and even if no charge was framed, the appellants could be convicted if there were material which attracted that Section. It was further urged that no prejudice would be caused to the appellants if recourse is taken to S. 149 of the Penal Code for conviction for murder. If that was not available, it was contended, aid of S. 34 may be taken. 15. Sec.34 of the Penal Code is in Chapter II, General Explanations, and S. 149 of the Penal Code is in Chapter VIII, Of Offences Against The Public Tranquillity. For attracting S. 34 of the Penal Code, participation in some way or other in a crime is necessary, whereas under S. 149 of the Penal Code mere membership of an unlawful assembly at the time of committing the offence will fasten the liability on all the members of that assembly of the offence committed. Under the former section participation in some action with common intention of committing the crime is necessary, whereas under the latter mere membership with common object of an unlawful assembly which committed the crime is the basis. Although all the members of the unlawful assembly might not have committed the crime, but each one of them shall have to be held responsible as a member. On behalf of the appellants, it was conceded and rightly, that even if no charge is framed under S. 34 of the Penal Code along with the substantive section, on the basis of the materials on record a person may be convicted, if no prejudice is caused. It was held by the Privy Council in Barendra Kumar Ghosh V/s. Emperor (AIR 1925 PC 1) : (26 Cri LJ 431) that S. 149 of the Penal Code creates specific and distinct offence. It was held by the Privy Council in Barendra Kumar Ghosh V/s. Emperor (AIR 1925 PC 1) : (26 Cri LJ 431) that S. 149 of the Penal Code creates specific and distinct offence. This was approved by the Supreme Court in a number of cases, a few of which are : Pandurang V/s. State of Hyderabad (AIR, 1955 SC 216) : (1955 Cri LJ 572); Nanak Chand V/s. State of Punjab ( AIR 1955 SC 274 ) : (1955 Cri LJ 721); and Lakhan Mahto V/s. State of Bihar ( AIR 1966 SC 1742 ) : (1966 Cri LJ 1349). If S. 149 of the Penal Code created specific and distinct offence, then a charge under that head must be framed. In Pandurangs case (supra) of course the Supreme Court observed as follows:- "In Pandurangs case we are left with the difficult question about S. 84 of the I. P. C. But before we deal with that, we will set S. 149, I. P. C. aside. There is no charge under S. 149 and, as Lord Sumner points out in Barendra Kumar Ghosh V/s. Emperor ((1925) 26 Cri LJ 431 (PC)), Sec.149, unlike S. 34 creates a specific offence and deals with the punishment of that offence alone. We would accordingly require strong reasons for using S. 149 when it is not charged even if it be possible to convict under that Section in absence of specific charge, a point we do not decide here." The Supreme Court, therefore, in Pandurangs case (supra) did not decide as to whether in absence of a charge under S. .149 of the Penal Code a person can be convicted under the substantive section. No case was brought to our notice which has held that although no specific charge was framed under S. 149 of the Penal Code along with the substantive Section, yet a person can be convicted for the substantive offence read with S. 149 of the Penal Code. In all the cases cited at the Bar the accused persons were also charged either under S. 149 of the Penal Code or under S. 34 of the Penal Code and in some cases there was no charge either under S. 149 of the Penal Code or under S. 34 of the Penal Code. In all the cases cited at the Bar the accused persons were also charged either under S. 149 of the Penal Code or under S. 34 of the Penal Code and in some cases there was no charge either under S. 149 of the Penal Code or under S. 34 of the Penal Code. On the facts and in the circumstances of latter class of cases recourse was taken to Sec.34 of the Penal Code to find out whether all the accused persons were guilty of the charge. 16 We have noticed that S. 149 of the Penal Code creates a specific and distinct offence, That being the position, in our opinion, specific charge under this Section must also be framed along with the substantive section. An accused person is entitled to. know with certainty and accuracy the exact value of the charge brought against him where he is sought to be implicated for the acts not committed by himself, but by others with whom he was in company. That being the position, in this case as no specific charge was framed under S- 149 of the Penal "Code, recourse cannot be taken to it for holding all the appellants guilty under S.302 of the Penal Code. 17. But that does not improve the case of the appellants. There is no dispute that in a given case aid of Sec.34 of the Penal Code may be taken. In this case P.W. 5 has stated both in the first information report and in his evidence that the first blow on Dr. Sikdar was given by Yogendra, the second blow by appellant, Surendra and then all the appellants hit him, P.W, 10 (Doctor) found a number of injuries. So many injuries could not have been caused by one blow given by Surendra. Injuries, therefore, were caused by other appellants. It is true that the injuries found were incised i.e., caused by sharp cutting weapon. According to P. W. 5, all the appellants were not carrying sharp cutting weapons. Except appellant Surendra he did not say who were the other appellants who were carrying sharp cutting weapons. Sternum was fractured; 3rd and 4th ribs were fractured. As appears from post-mortem report it was quite probable that incised wounds were more prominent than the injuries caused by lathi blows. We are of the opinion that all the appellants hit Dr. Sikdar. Sternum was fractured; 3rd and 4th ribs were fractured. As appears from post-mortem report it was quite probable that incised wounds were more prominent than the injuries caused by lathi blows. We are of the opinion that all the appellants hit Dr. Sikdar. It has come in evidence that all the appellants came together and surrounded Dr. Sikdar. It can be safely concluded that the appellant had common intention to murder him, even if it is found that it is difficult to hold who gave the fatal blow PW 10 stated, that any one injury was sufficient to cause the death, the appellants must be held guilty under S. 302 read with S. 34 of the Penal Code. 18. * * * 19. * * * 20. If a number of persons combined in injuring one person in such a manner that each person engaged in causing the injury must know that the result of such injury may cause the death of the injured person, then it is no answer on the part of any one of them, to allege that he individually did not cause death and by his individual act he cannot be held to have intended death. Everyone must be taken to have intended the probable and natural results of the combination of the acts in which he joined. Sec.34 of the Penal Code will come into operation when there is a substantive charge of an offence having been committed. In his evidence, PW 1 has admitted that he stated before the police that nine persons duly armed had surrounded Dr. Sikdar and that they assaulted him as a result of which Dr. Sikdar died at the spot. Even PW 2 has admitted that he had seen eight or nine persons duly armed coming at the relevant time. PW 5 has stated that nine persons duly armed with lathi, pharsa and bhala surrounded Dr. Sikdar and they were all shouting, Maro-Maro and this PW 5 has named and identified all the nine accused persons. PW 5 has stated in paragraph 35 that the accused persons had surrounded them (PW 5 and Dr. Sikdar) but they concentrated upon the doctor. In paragraph No. 32 PW 5 has stated that he left the place only when Dr. Sikdar died. Only Surendra Rawani had assaulted this PW 5. PW 5 has stated in paragraph 35 that the accused persons had surrounded them (PW 5 and Dr. Sikdar) but they concentrated upon the doctor. In paragraph No. 32 PW 5 has stated that he left the place only when Dr. Sikdar died. Only Surendra Rawani had assaulted this PW 5. Thus the evidence of PW 5 clearly indicates that the individual intention of each accused as disclosed by the circumstances was to cause the death of Dr. Sikdar. So in this circumstance, the contention of the defence that some of the accused had only lathi and that the death was not caused by lathi injury and as such they cannot be held liable for causing the death of Dr. Sikdar is of no avail. The evidence of PW 5 makes it clear beyond doubt that all the accused persons had combined in injuring Dr. Sikdar in such a manner that each person engaged in causing the injury was aware that the result of such injury may be the death of the injured person and in such a case it is no answer on the part of any one of them to allege that his individual act did not cause the death and that by his individual act he cannot be held to have intended the death. Every one. must be taken to have intended the probable and the natural results of the combination of the acts in which he joined. Under these circumstances, S. 34 of the Penal Code can be applied to a case where there is substantive charge of an offence of murder having been committed. 21. In the facts and circumstances of the case, we are of the opinion that no prejudice will be caused to the appellants if recourse is had to S. 34 of the Penal Code. We are of the opinion that the trial court rightly held all the appellants guilty of murdering Dr. Sikdar. 22. In the result, there is no merit in the appeal and it is dismissed. The appellants Nos. 1 and 3 to 9, namely, Yogendra Rawani, Bhola Rawani. Ram Bilas Rawani, Shankar Rawani, Dwarika Rawani. Harihar Baldar, Pradip Singh and Gobind Rawani respectively, were enlarged on bail. They must surrender to their bail bonds and serve the sentence.