Shearer, J.

1. These appeals, which have been heard together, arise out of a judgment of Khan Bahadur Muhammad Ibrahim, the Sessions Judge of Muzaffarpur, convicting six men of rioting and murder. The riot in which they are said to have been concerned took place on 18th September 1942, and shortly afterwards a number of men were arrested and in due course put on trial before the then Sessions Judge, Rai Bahadur Aghore Nath Banarji. Most of these men were convicted and an appeal against their convictions and sentences was dismissed by Sinha and Beevor JJ., on 9th February 1944. The present appellants had absconded. One of them, namely, Satnarain Chaudhary, was apprehended on 5th July 1943, that is, shortly before judgment was delivered by Rai Bahadur Aghore Nath Banarji. The other appellants were apprehended much later; most of them not until the middle or latter part of 1944.

2. The immediate cause of the riot was the action of Pancham Jha and his son Nageshwar Jha and a number of labourers in cutting the marua crop standing on a small parcel of land in village Manki, to which the appellant Satnarain and most of the other appellants belong. This land was originally bakasht land, and in 1927 the landlord settled it with one Sia Chaudhary, who is the uncle of the appellant Satnarain Chaudhary. Subsequently, Sheo Parsan Chaudhary, the brother of Sia Chaudhary, took a conveyance of an eight annas interest in the estate in which this land is situated. Immediately afterwards Sheo Parsan Chaudhary mortgaged this property to one Satnarain Singh, the employer of Pancham Jha and Nageshwar Jha, who belongs to another village some considerable distance away from Manki. The mortgage money was not repaid, and Satnarain Singh in due course instituted a suit and obtained a decree in execution of which he had the mortgaged property sold and purchased it himself. The amount realised by the sale was insufficient to liquidate the debt and Satnarain Singh obtained a decree for the balance. In execution of this decree he brought to sale and himself purchased the raiyati interest of Sheo Parsan Chaudhary and his brother Sia Chaudhary in the land over which the riot took place.

3. In the course of the execution proceedings several persons appear to have put forward claims, asserting that they were in possession of the land on their own account and were not liable to be evicted by Satnarain Singh. These claims were, however, dismissed, and Satnarain Singh ultimately succeeded in obtaining possession of the land. Not long after the writ for delivery of possession was served, the insurrection of 1942 began, and in it the police-station at Katra, within the jurisdiction of which Manki is situated, was burnt down. A panchayat board was apparently set up by the insurgents in Berai, a village contiguous to Manki, and on 25th August 1942, this panchayat board presumed to make an award under which Sheo Parsan Chaudhary was to pay the sum of Rs. 3500 to Satnarain Singh, and Satnarain Singh was to re-convey the property he had purchased to Sheo Parsan Chaudhary. The award provided that the payment was to be made within a period of one month and provided further that, if Sheo Parsan Chaudhary was unable to make the payment, he was to have the option of conveying certain land to Satnarain Singh instead. Shortly afterwards, on 14th September 1942, the members of the panchayat caused a letter to be sent to Satnarain Singh, requiring or requesting him to abide by the decision they had given. Satnarain Singh and his agent in Manki, Nageshwar Jha, apparently declined to comply with the wishes of the board. It was, no doubt, in consequence of this that on 18th September 1942, Sheo Parsan Chaudhary collected a mob and went to take forcible possession of the land. As I have already said, Paneham Jha and his son Nageshwar Jha were on the land getting the marua crop cut when the mob arrived. Paneham Jha, when asked to quit the land, declined to do so, and thereupon he was attacked and killed. Three of the labourers were also more or less severely, assaulted. Neither Mrs. Dharamshila Lall nor Mr. K.P. Varma, who appear for the appellants, has attempted to contend that a riot of a serious kind did not in fact take place.

4. Indeed, upon the evidence on the record it would be quite impossible to put forward any such argument. Mr. K.P. Varma has, however, attempted to persuade us that two of his clients, namely, Ramcharan Rai and Satnarain Chaudhary, took no part in it and are the victims of a conspiracy. Ram Charan Rai does not belong to Manki but to Berai, and is the son of one Sukhdeo Rai. The latter was apparently one of those men who were tried by Rai Bahadur Aghore Nath Banarji and he was acquitted. Mr. Varma contends that the learned Sessions Judge was in error in relying on the evidence of certain witnesses for the prosecution when his predecessor had disbelieved the evidence of these witnesses in so far as they incriminated his father. There is, in my opinion, little or no force in this argument. For one thing, it would seem that the volume of evidence against the appellant Ram Charan Rai is considerably greater than was the volume of evidence against Sukhdeo Rai at the earlier trial. Certain of the witnesses for the prosecution who had apparently said nothing at the earlier trial against Sukhdeo Rai gave evidence at the subsequent trial against his son Ram Charan Rai.

5. Secondly, from the outset, a fairly prominent and active part in the riot has been ascribed to Ram Charan Rai, but not apparently to his father Sukhdeo Rai. Even in the first information it was said that Ram Charan Rai was one of those who had assaulted one of the labourers, Hazuri Rant, and had carried him away from the scene of occurrence. At this trial Hazuri Raut gave evidence against Ram Charan Rai and stated that he was one of the men who had struck him with lathis. Ram Charan Rai, as I have said, belongs to Berai, and the suggestion put forward on his behalf was that the mahant of Patepur, who is the landlord of Berai, had been responsible for his-being incriminated. It is said that Ram Charan Rai had consistently declined to pay rent to the mahant of Patepur and that in consequence the mahant had had to institute a number of rent suits against him. It is also said that relations between him and the mahant had been so strained that the mahant had applied for action to be taken against him under Section 107, Criminal P.C. There is no evidence of this on the record. Even, however, assuming that relations between Ram Charan Rai and his landlord, the mahant of Patepur, had for some considerable time been strained, I can see no reason at all to suppose that that was why Ram Charan Rai came to be incriminated. Berai is quite close to Manki and was the seat of the panchayat board which endeavoured to get Satnarain Singh to surrender this land to Sheo Parsan Chaudhary. There is nothing very unlikely in his having joined the mob which Sheo Parsan Chaudhary collected. Nageshwar Jha may, no doubt, hold some land under the mahant of Patepur, but there is no good reason to suppose that he was amenable to pressure by the mahant of Patepur and would at his instance have incriminated a man whom he knew to be innocent.

6. Moreover, it would seem that Nageshwar Jha took steps to lodge a first information as soon as he possibly could. The police-station at Katra had been burnt down and in consequence Nageshwar Jha had to take the dead-body of his father, Paneham Jha, to Muzaffarpur on a bullock-cart. He reached Muzaffarpur and lodged a first information at 1 A.M., which makes it very unlikely indeed, and in fact almost impossible, that there was any consultation between him and any amlas of the mahant of Patepur before he left the village. I am satisfied that the appellant Eamcharan Rai did in fact take part in this riot. The appellant Satnarain Chaudhary is the only son of Sheo Parsan Chaudhary who was the man directly and immediately responsible for the riot. He was apprehended or surrendered on 5th July 1943, and shortly afterwards the Civil Surgeon was asked to report how old he was and stated that, in his opinion, he was fourteen. The learned Sessions Judge and the learned Committing Magistrate were apparently both of the opinion that, when they saw him, he was about fifteen years of age. If these estimates are correct, Satnarain Chaudhary must have been a boy of between twelve and thirteen when the riot took place. Mr. K.P. Varina saya that it is very unlikely indeed that a boy of that age would take part in a riot, and points out that each of the assessors, who was satisfied as to the guilt of the other prisoners, was disposed to acquit him. There is, however, a great deal of evidence against this boy and I agree with the learned Sessions Judge in thinking that it is impossible to reject it in its entirety and to assume that Nageshwar Jha, when he went to the police-station, took it into his head to incriminate Satnarain Chaudhary falsely and maliciously merely because he knew that that would be likely to cause intense suffering to Sheo Parsan Chaudhary whose only son he is.

7. Pancham Jha was an old man of sixty-five and was most foully and brutally murdered. He was apparently attacked by several men, some of whom were armed with pharsas and others with bhalas. One of the former struck him a blow on the back, causing a wound 8 1/2" long and 3" wide and cutting through no fewer than seven of his ribs. One of the latter, who was standing on the other side of Pancham Jha, drove his bhala deep into his side, cutting through the seventh rib and puncturing both the stomach and diaphragm. Another man, armed with a bhala, drove it into his back deep enough to cause damage to the left kidney. He was struck at least three more blows with pharsas, two of them on the head. The appellant Kuseshwar Chaudhary is said to have been responsible for the first of the two blows with bhalas which I have just described, and he was in consequence charged substantively with murder. The Assistant Surgeon, who conducted the post mortem, had, it should be explained, expressed the opinion that either of the two wounds caused by bhalas, or the wound on the back caused with a pharsa, was by itself sufficient to cause death. The learned Sessions Judge was of opinion that the prosecution had not succeeded in showing that Kuseshwar Chaudhary was in fact responsible for one of these particular wounds. The learned Sessions Judge was, however, apparently satisfied that Kuseshwar Chaudhary was armed with a bhala and was one of those who took part in the attack on Pancham Jha, and it would, I think, be impossible to hold that Kuseshwar Chaudhary was one of the rioters and yet took no part in this attack. I am myself satisfied on the evidence that he did do so.

8. In that view of the matter it is wholly immaterial whether he was directly responsible for any of the three wounds which, in the opinion of the Assistant Surgeon, was by itself sufficient to cause death. Any man who took part in this attack was, in my opinion, quite clearly guilty of murder, as the attack was so brutal and violent a one that an intention to cause death on the part of all who were concerned in it must be presumed. The provisions contained in Section 34, Penal Code, clearly apply. The appellant Satnarain Chaudhary is said to have struck Pancham Jha a blow with a lathi. It is not possible to suppose that this boy joined in the attack on Pancham Jha at the same time as the men who were armed with pharsas and bhalas fell upon him. In fact, the evidence of Eamgulam Sao and two or three of the other labourers is that this boy did not strike Pancham Jha until he was lying on the ground. Mr. K.P. Varma has pointed out that the Assistant Surgeon who conducted the post mortem did not find any lacerated wounds or other injuries, which might have been caused by lathis, on the dead-body. It is, however, possible that any outward mark produced by the blow which this appellant struck had disappeared before the post mortem. I think the evidence of Ramgulam Sao and the other labourers ought to be accepted and it ought to be held that for some reason or other this boy went over to Pancham Jha as he was lying on the ground and hit him with a lathi. That he did in fact do this explains, I think myself, how he came to be incriminated. Is he then constructively guilty of murder in the same way as Kuseshwar Chaudhary is, namely, by reason of the provisions contained in Section 84, Penal Code In my opinion, he is not, and that for two reasons. In the first place, Nageshwar Jha said that his father died instantaneously, and it is possible that when Satnarain Chaudhary went over to where he was lying and hit him with a lathi he was already dead. Secondly, even if life was not yet extinct, the fatal assault was already over. This boy cannot be said to have participated in it, and such injury as he subsequently caused cannot in any way have accelerated or, indeed, contributed at all to Pancham Jha's death.

9. The question then arises as to whether Satnarain Chaudhary and the remaining appellants, other than Kuseshwar Chaudhary, are guilty of murder under the provisions contained in Section 149, Penal Code. At the original trial the accused persons were charged under Section 302, read with Section 149, Penal Code but they were convicted under Section 826 read with Section 149, Penal Code, and, with the exception of two or three, who were sentenced to rigorous imprisonment for four or five years, were each sentenced to undergo rigorous imprisonment for two years. Rai Bahadur Aghore Nath Banarji, the learned Sessions Judge, did not set out at length his reasons for taking this course; but it may be presumed that he relied on the decision of Rowland J., with which Varma J., agreed, in Bhagwat Singh v. Emperor A.I.R. 1936 Pat. 481. Speaking for myself, and with the greatest respect, that decision is, I think, on several grounds open to criticism.

10. In the first place, it is, in my opinion, directly at variance with an earlier decision of a Division Bench of this Court. In Ram Prasad Singh v. Emperor A.I.R. 1923 Pat. 50 a Sessions Judge had convicted one member of an unlawful assembly under Section 302, Penal Code, and had sentenced him to transportation for life, but had convicted the remaining members under Section 304 read with Section 149, Penal Code, and had sentenced them to undergo rigorous imprisonment for five years each. These latter convictions were set aside on appeal on the ground that it was not open to the learned Sessions Judge to convict the remaining members of the unlawful assembly of a minor offence. Coutts J., in dealing with the matter, said this:

I can find no authority, however, for convicting the principal offender of one offence and the rest of the members of the unlawful assembly of another offence, nor has the learned Assistant Government Advocate been able to refer us to any such case, and it seems to me clear from the Section itself that if a member of an unlawful assembly is to be found constructively guilty of an offence under Section 149 it must be the same offence of which the principal is guilty and not some other offence. If the members of an unlawful assembly are not guilty of the same offence as the principal, the only reason why they are not guilty is because they do not come within the terms of Section 149. If then the rest of the appellants are not constructively guilty of the same offence as Ram Prasad, they cannot be found guilty under Section 149 at all.
11. It is true that in Bhagwat Singh v. Emperor A.I.R. 1936 Pat. 481 no member of the unlawful assembly had been convicted of murder. The reason, however, was that it had been impossible for the prosecution to show who the individuals were who had committed the murder. That murder was committed by one or more members of the unlawful assembly was conceded. That being so, in altering the convictions from one under Section 302 read with Section 149 to one under Section 326 read with Section 149, Penal Code, the Division Bench were doing exactly what another Division Bench had some years earlier decided could not, in law, be done. Secondly, Rowland J. relied on certain observations of Phear J. in the well-known case in Queen v. Sabid Ali (73) 20 W.R. 5 which, he thought, went to support the view which he put forward. Unfortunately, Rowland J. omitted to quote the observations on which he relied. It is true that Phear J. pointed out that Section 149, Penal Code, had been drawn in such a way that some member of an unlawful assembly might, while the common object of that unlawful assembly was being prosecuted, commit an offence and yet the remaining members might not be constructively liable for it. I cannot, however, myself see that Phear J. went any further than that and what he said was entirely correct. On the other hand, Ainslie J., referring to the concluding words in Section 149, had observed:

These last words are very stringent. If the Section applies, the Court is bound to convict of the particular offence.
12. Although Phear J. and most of the other learned Judges dissented from the view which Ainslie J. took of the case, none of them made any comment on this remark of his, and Couch C.J. impliedly endorsed it by saying that

certainly in a case like this, where, if the accused are found guilty they are liable to a sentence of death, if there is a reasonable doubt as to the view with which the gun was fired they ought to have the benefit of it.
13. Lastly, as Edge C.J. pointed out in Queen-Empress v. Bisheshar (87) 9 All. 645, Section 149, Penal Code, creates no offence but is merely declaratory of a principle of the English common law. That principle is that in a riot all are principals, the rioter, who with his own hand commits the offence, being a principal in the first degree, and the other rioters being principals in the second degree on the ground that by their presence they have aided and abetted the doing of the act. When it was sought to make certain rioters liable for an act done by another of their number, a common practice was to set out in the indictment the facts which it was intended to prove and to charge them specifically with having aided and abetted the rioters who did the act. In such cases the jury was often asked to find a special verdict; and when the special verdict was returned, the question that arose was whether or not, on the facts found by the jury, the prisoners; were or were not principals in the second degree: see the summary of the argument in Rex v. John Royce (1767) 4 Burrow 2073. If they were principals in the second degree, they were, of course, guilty of the same offence as the principal in the first degree. Not only that, but until comparatively modern and more merciful times, when it became not unusual "to apportion the punishment," to borrow the expression used by their Lordships of the Judicial Committee in an early Indian case Ganesh Singh v. Ram Raja (69) 3 Beng. L.R. 44 in which this matter was touched on, they were as a rule liable to and, indeed, invariably received, exactly the same punishment. Rowland J. in support of the conclusion at which he arrived, referred to Sections 35, 38 and 110, Penal Code. These Sections are also declaratory of principles of the English common law, but principles very different to that underlying Section 149. Section 110 deals with the case of the accessory before the fact who is not himself present at the fact. Now,

at common law the offence of an accessory before the fact was regarded as so different from that of a principal in the second degree, that where a woman was indicted as an accessory before the fact, it was held that she could not be convicted of that charge upon evidence proving her to have been present aiding and abetting; it being clearly admitted to be necessary to charge a principal in the second degree with being present aiding and abetting. (See Russell on Crimes and Misdemeanors, 8th Edn., Vol. I, page 121.)
14. Sections 35 and 38 deal with cases in which each of several persons is a principal in the first degree but they commit different offences inasmuch as some have done the act with one knowledge or intention and the others have done it with another knowledge or intention. In England, as far back as 1553, it was settled that where several men combine to kill another man, and some of them are actuated by malice aforethought and others are not, it is murder in the former but manslaughter in the latter: Rex. v. Ralisbury (1861) 1 Plowden 100. The argument from analogy is always dangerous; and in seeing any analogy between the principles underlying these Sections and the principle underlying Section 149, Rowland J., if I may say so with respect, fell into an error. The decision in Ram Prasad Singh v. Emperor A.I.R. 1923 Pat. 50 is, in my opinion, correct, and is, moreover, binding on me unless and until it is set aside by a larger bench. It, therefore, follows that if, in my opinion, the appellants or any of them are guilty under Section 149 of the Code, I must convict them of murder and cannot impose a lesser punishment than transportation for life. Whether in some cases that sentence is too severe and ought to be respited, is a matter solely for the Crown to consider in exercise of its prerogative of mercy. On the other hand, the decision at the former trial that the members of this unlawful assembly were constructively liable for the act of those who killed Pancham Jha is not res judicata. The matter is one which I have to consider for myself and come to my own conclusion. There can be no doubt but that certain members of this unlawful assembly committed murder, and a murder of the most cruel and barbarous kind. Was this murder committed "in prosecution of the common object" which words, as laid down in Queen v. Sabid Ali (73) 20 W.R. 5, must be construed as meaning "with a view to the achievement of the common object" The common object of the unlawful assembly was to drive Pancham Jha and his son and labourers off the land and to cut and remove the marua standing on it. If, when the mob reached the land, certain men in it had refrained from advancing further and others had made a rush at Pancham Jha and his labourers and attacked them, the view which I should have been disposed to take would have been that those men who did nothing had dissociated themselves from further prosecution of the common object, but that all of those who advanced on Pancham Jha and the labourers were constructively guilty of murder.

15. On the evidence, however, it is clear that nothing of this kind actually happened. What appears in fact to have happened is that, when the mob reached the land, some men in it entered into an argument with Pancham Jha. What Pancham Jha said or did does not appear from the evidence, which is, I think, unfortunate; but it is clear that certain men in the mob lost their tempers and leaving the others, advanced on and attacked and killed him. The labourers who were assaulted would seem to have been assaulted subsequently and because they had protested at what had been done to Pancham Jha. Khan Bahadur Muhammad Ibrahim took the view that the appellants were guilty under the first part of Section 149. It cannot be said that this view was an untenable one, but there is, I think, a certain amount of doubt on the point, and of that the appellants ought to have the benefit. If, then, the first part of Section 149 does not apply, are the appellants guilty under the second part Russell on Crimes and Misdemeanors, 8th Edn., Vol. I, p. 119, contains the following:

It is submitted that the true rule of law is, that where several persons engage in the pursuit of a common unlawful object, and one of them does an act which the others ought to have known was not improbable to happen in the course of pursuing such common unlawful object, all are guilty.
16. Sir William Oldnall Russell was at one time Chief Justice of Bengal, and it would be interesting to know if this passage is to be found in the earliest editions of his work to which the authors of Penal Code may have had access. In Edn. 7 of the work no authority was apparently cited for the proposition. But, before Edn. 8 appeared, it received the approval of the Court of criminal appeal in Rex v. George Edward Pridmor (1913) 8 Cri. AR 198. It is true that that was not a case of rioting; but the Court of criminal appeal was dealing with the principle of the common law Which underlies Section 149, Penal Code. Rai Bahadur Aghore Nath Banarji, differing on this point from Khan Bahadur Muhammad Ibrahim, appears to have thought that the accused persons were liable under part II of Section 149. What apparently, weighed with him was that certain members of the unlawful assembly were armed with deadly weapons. This is, of course, a circumstance to which some regard must be had; but since the decision in Bhagwat Singh v. Emperor A.I.R. 1936 Pat. 481 there is, I think, a danger of undue weight being attached to it. The evidence does not show that more than a very few men were armed with bhalas and pharsas, although a larger number would seem to have been armed with lathis. My experience of agrarian riots in Bihar is that in almost every mob some men are to be found armed with bhalas or pharsas and yet that in a great many cases these weapons are not used, or, at any rate, are used in such a way that fatal consequences more frequently than not do not ensue. The question to which, in my opinion, Sessions Judges ought to address themselves in considering whether part II of Section 149, Penal Code, applies is this:

Was the nature of the enterprise, to borrow the expression used in Rex v. George Edward Pridmor (1913) 8 Cri. AR 198, such that every member of the unlawful assembly ought to have realised that murder was likely to be committed.
17. Now, in this particular case a panchayat board, set up by the insurgents in the adjoining village, had decided that Satnarain Singh should make over this land to Sheo Parsan Chaudhary. The mob, it seems to me clear, went to Manki for the purpose of enforcing this award. There were on the land an old man and his son and a small handful of labourers. These men were not armed; and although they displayed a reluctance to quit the land, they did not evince any intention to remain on the land and fight it out. In these circumstances, how can it reasonably be said that every member of this unlawful assembly knew, which must obviously be taken to mean ought to have realised, that there was a likelihood (which, if it does not mean a probability, at least means more than a possibility) that some of their number would commit murder I have no hesitation myself in answering this question in the negative.

18. In the result then, I would alter the conviction of Kuseshwar Chaudhary from one under Section 302 read with Section 149, Penal Code, to one under Section 302 read with Section 34, Penal Code. I would set aside the convictions of the remaining appellants under Section 302 read with Section 149, Penal Code, and the sentences of transportation for life have been imposed on them. The appellants Ram Charan Rai, Charitar Gope, Jadunandan Raut and Anup Raut are sentence to undergo rigorous imprisonment for two years each under Section 147, Penal Code. Sat Naraih Chaudhary is still a mere boy, and I would reduce his sentence to the period of imprisonment already undergone. Subject, however, to these modifications, I would dismiss the appeals.

Pande, J.

19. I entirely agree and would like to make the following observations.

20. The appellants have been convicted for the offence of rioting and constructively for the offence of murder of one Pancham Jha under Section 302 read with Section 149, Penal Code. The convictions are based on the following findings of the Sessions Judge:

(1) That a large number of persons, who were armed with weapons, came up for depriving Satnarain Prasad Singh of the enjoyment of the right of possession of a portion of Plot No. 81 and assaulting Pancham Jha and others and that in prosecution of the common object of the unlawful assembly, of which they were members, they committed rioting.

(2) That the murder of Pancham Jha was committed in prosecution of the common object of the unlawful assembly by one or more of its members and they must have known that the murder was likely to be committed in prosecution of the common object of the unlawful assembly.

21. The evidence shows that Plot No. 81 which is the scene of the occurrence, originally formed part of a raiyati holding of Sheo Parsan Chaudhary of village Manki. The holding had passed into the possession of Sat Narain Singh by purchase in execution of his decree at a court-sale and he had obtained delivery of possession of it through Court. It has been found by the Sessions Judge that Sat Narain Choudhury has been in possession of the land and had grown mania crop in the field. About the time of the occurrence Pancham Jha, his son Nageshwar Jha were engaged in harvesting the crop with the help of five labourers. Sheo Parsan Choudhary went to the field with a big mob which is said to be of about 100 persons and four of these were armed with bhala and garassa and the rest with lathis. Sheo Parsan asked the men to stop harvesting. Pancham refused to comply and apparently there ensued altercations between the two. Pancham was very brutally struck by sharp and pointed weapons in consequence of which he died in the field. It is for this offence of killing that the appellants have been convicted under S.149, Penal Code. It seems clear from the evidence that the main object of the unlawful assembly was to drive Pancham and his labourers off the field and to cut away the standing crop, obviously with a view to assert right of possession over the field. There is nothing in the evidence to show that Pancham or his men engaged in reaping, were in any way armed. The field in question is in mouza Manki. Sheo Parsan Chaudhury and the members of the mob are residents of mouza Manki and the adjoining mouza Berain. The members of the assembly must be well aware that only seven unarmed men engaged in reaping were to be driven off the field.

22. In the circumstance, there was little likelihood of and effective resistance by the men in the field and so no violent use of arms could be in contemplation of the members of the assembly. It is not clear from the evidence what led some members of the assembly to strike Pancham to death. Possibly Pancham's insolent behaviour or recalcitrant attitude might have enraged some easily excitable members of the assembly to commit such brutal assaults on Pancham. At the postmortem examination six injuries were found on the body of Pancham Jha and of these four were incised wounds and two were punctured wounds. The nature of injuries indicate that the men armed with garassa and some of these armed with bhala struck him. The question is whether in this state of evidence all other members of the unlawful assembly are liable for the offence of murder under Section 149, Penal Code. As was pointed out by a Full Bench of the Calcutta High Court in the well-known case in Queen v. Sabid Ali (73) 20 W.R. 5, Section 149, Penal Code, is not intended to subject as member of an unlawful assembly to punishment for every offence which is committed by one or more of its members during the time they are engaged in prosecution of the common object. In order 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. The principle of law on the subject is stated in Russell on Crimes thus:

If a murder is committed in prosecution of some unlawful purpose,...all persons who went to give assistance, if need were, in carrying the unlawful purpose into execution, are guilty or murder. But this applies only where the murder is committed in prosecution of some unlawful purpose, in which the combining parties united, and for the effecting whereof they are assembled; for unless this appears, though the person giving the mortal blow may himself be guilty of felonious homicide, yet the others who came together for a different purpose will not be involved in his guilt: (8th Edn., p. 116).
23. The case in Emperor v. Krishnnarao Narayanrao (03) 5 Bom. L.R. 1023 may be referred to in illustration of the principle. In that case the rioters first-attacked M and it was not until B and after him T had arrived on the scene and had expostulated or interposed that some of the rioters, of whom the appellant was not proved to be one, spontaneously attacked B and T and killed them. Their Lordships Sir Lawrence Jenkins C.J. and Aston J. observed that if the common object was to kill B or T, the attack upon them would hardly have been deferred until B and T interposed. And on a consideration of the evidence their Lordships came to the conclusion that there was a common intention, in which the appellant shared, to inflict grievous hurt on M and such hurt was actually inflicted. It was, therefore, held that the appellant was liable only for the offence of grievous hurt under Section 825 with Section 149, Penal Code, and not for the offence of murder. In the present case the learned Sessions Judge has no doubt found that one of the common objects of the unlawful assembly was to beat Pancham Jha. But there is an obvious difference between such a finding and the finding that the common object of the unlawful assembly was to inflict injury of such a nature that death was its most probable consequence. In the circumstance of there being little apprehension of any effective resistance by the man in the field the members of the unlawful assembly would hardly have contemplated such violent use of arms which might result in death of one or more of the opposers. Therefore, it cannot reasonably be said that the murder was committed "in prosecution of some unlawful purpose in which the combining parties united and for the effecting whereof they are assembled."

24. In Zahiruddin v. Queen-Empress (95) 22 Cal. 306 their Lordships Beverley and Banerjee JJ. pointed out that members of an unlawful assembly may have a community of object only up to a certain point, beyond which they may differ in their objects, and that the knowledge possessed by each member of what is likely to be committed in prosecution of their common object, will vary, not only according to the information at his command, but also according to the extent to which he shares the community of object; and as a consequence of this, the effect of Section 149, Penal Code, may be different on different members of the same unlawful assembly. Here, therefore,-such members of the assembly who inflicted the injuries resulting in the death of Pancham Jha may be held guilty for the offence of murder. Other members of the assembly who did not share in such object are liable for the offence of rioting only. The learned Sessions Judge appears to have been largely influenced in his judgment by, what he describes, the members of the assembly knew that murder was likely to be committed in prosecution of the common object of the un-lawful assembly. The evidence, however, as I have stated above, shows that three of the members carried bhala and one only a garassa. This circumstance by itself hardly warrants the inference which the learned Sessions Judge seems to have drawn. There being no reasonable apprehension of any effective resistance by the men in the field the members of the assembly may reasonably have expected that mere show of their armed strength would be sufficient to drive the men off the field and at best in the event of any recalcitrant attitude of the men a few simple strokes would be sufficient for the achievement of the object of the assembly. Therefore, it cannot reasonably be said that the members of the unlawful assembly knew beforehand that murder was likely to be committed in prosecution of the common object of the unlawful assembly.

25. It follows from the above discussions that the convictions of the appellants under Section 302 read with Section 149, Penal Code, cannot be supported. As to the guilt of Kusheswar Chaudhury there is ample evidence on the record to prove that he was an actual participant in the act resulting in the death of Pancham Jha. I, therefore, agree that he is liable for the offence under Section 302 read with Section 34, Penal Code. The question whether other members of an unlawful assembly are liable for offence different from that actually committed by one or more of its members in the course of the occurrence does not seem to arise directly for decision of this case. It, however, arises incidentally as in a previous trial of some of the accused involved in the occurrence that were, convicted for offence different from that which was actually committed during the occurrence. Section 149 does not create any new offence. It merely declares the liability of other members of an unlawful assembly for act or acts done by one or more of their associates in prosecution of the common purpose.

26. Therefore, the members other than the actual perpetrator of the crime are liable for the offence that is actually committed and not for a different offence which different members of the assembly in their individual judgment may have contemplated to be likely to be committed in prosecution of the common object. The liability of the other members of the offence committed during the continuance of the occurrence rests upon the fact whether the other members knew before hand that the offence actually committed was likely to be committed in prosecution of the common object. Such knowledge may reasonably be collected from the nature of the assembly, arms, or behaviour, at or before-the scene of action. If such knowledge may not reasonably be attributed to the other members of the assembly then their liability for the offence committed during the occurrence does not arise. But when it may reasonably be held that other members of the assembly knew beforehand that the offence actually committed was likely to be committed in prosecution of the common object then such other members of the assembly are liable for the offence committed to the same extent as the actual perpetrator of the crime. Sir William Oldnall Russell says:

The blow given under such circumstances is in point of law the blow of all, and it is unnecessary to prove which struck the blow. (Russel on Grimes, p. 117).
27. My learned brother has discussed this matter at some length and I do not think I can add anything useful to it. For the above reasons I concur with my brother in dissenting, most respectfully, from the principle laid down in Bhagwat Singh v. Emperor A.I.R. 1936 Pat. 481 and would follow the decision in Ram Prasad Singh v. Emperor A.I.R. 1923 Pat. 50 . I agree to the orders proposed.