Basi Reddy, J.
1. On the morning of 7-3-1957, between 7-30 and 8 a.m., a serious rioting with deadly weapons took place in the village of Nemilladinne, in the course of which two persons were butchered in cold blood and five others, who went to their rescue, received injuries at the hands of the rioters. The two murdered persons, who were brothers, were Venkatrami Reddi and Ella Reddi, and will be referred to hereinafter as Deceased-1 and Deceased-2 respectively.
The injured persons were Rami Reddy (P.W.1), Ramakka (P.W.2), Venkatamma (P.W.3), Subbamma (P.W.4) and Balanna (P.W.5). P.W.1 is the father of the deceased. P.W.2 is the sister of the deceased; P.W.3 is the wife of P.W.1's brother; P.W.4 is the widow of Deceased-1 and P.W.5 is a partisan of the Deceased. Deceased-1 sustained a gun-shot wound to the forehead besides 10 incised wounds on his body caused by spears and hatches, and death was due to shock and haemorrhage as a result of multiple fractures of skull bones and ribs, and injuries to the vital organs viz, brain, left and right huigs and liver. Deceased-2 sustained a gun shot wound in the thigh and as many as 36 incised wounds all over his body caused by hatchets and spears, and death in bis case was due to shock and haemorrhage as a result of multiple fractures of the skull bones, mandible, left radius and ribs and injuries to vital organs viz. heart, lungs, liver, stomach, and spinal cord. P. Ws. 1 to 5 received comparatively minor injuries caused by spears or hatchets; and P.W.5 had also a gun-shot injury on the left forearm.
2. In connection with this incident 19 persons were arraigned before the learned Sessions Judge. Cuddapah Division, in Sessions Case No. 47 of 1957. Of them Poreddi Venkatasubba Reddi, Accused No. 3, was murdered while the case was pending before the Sessions Court and so the. case against him abated. The remaining 18 accused, viz. Accused 1, 2 and 4 to 19 were tried by the learned Sessions Judge on 15 charges.
3. The 1st charge was against all the 18 accused under Section 148 I. P. C. rioting armed with deadly weapons -- A-1 and A-2 with guns; A-4 to A-8 and A-12 to A-15 and 18 and 19 with spears and A-9 to 11, 16 and 17 with hatchets, and the common object of the unlawful assembly was stated as attacking and killing Deceased-1 and Deceased-2 and their partisans.
4. The 2nd charge was against all the 18 accused under Section 302 read with Section 34 I. P. C. for having conjointly and in furtherance of their common intention caused the death of Deceased-1.
5. The 3rd charge also was against all the 18 accused under Section 302 read with Section 34 I. P. C. for baying conjointly and in furtherance of their common intention caused the death of Deceased-2.
6. Charges 4 to 13 related to the causing of hurt in the course of the same transaction to P.Ws. 1 to 5.
7. Charges 14 and 15 were against A-1 and A-2 under Section 19(f) of the Indian Arms Act for having been in possession of unlicensed guns.
8. The teamed Sessions Judge accepted the plea of alibi set up by the 1st accused and acquitted him of all charges.
9. On the 1st charge, the learned Sessions Judge convicted the remaining 17 accused viz. A-2 and 4 to 19 under Section 148 I. P. C. and sentenced each of them to 2 years rigorous imprisonment.
10. On the 2nd charge which was for the murder of Deceased-1, all the accused were acquitted.
11. On the 3rd charge, which related to the murder of Deceased-2 the learned Judge convicted A-4 to 19 under Section 325 read with Section 34 I. P. C. and sentenced each of them to 3 years' rigorous imprisonment. He acquitted A-2 of this charge. It will be noted that there was thus an implied order of acquittal on the charge of murder so far as A-4 to 19 were concerned.
12. The 4th aud 5th charges were in respect of the attack on P.W.1. A-4 and A-9 were convicted on Charge No. 4 under Section 326 read with Section 34 I. P. C. and A-2, 8, 10, 11, 13 and 15 to 18 on charge No. 5 under Section 326 read with Section 149 I.P.C. and each of them were sentenced to 3 years' rigorous Imprisonment. A-5, 6, 7, 12, 14 and 19 were acquitted of Charge No. 4.
13. The 6th and 7th charges were with regard to the attack on P.W.3. On charge No. 6, A-14 and 19 were convicted under Section 324 read with Section 34 1. P. C. and on charge No. 7, A-2, 4 to 13 and 15 to 18 were convicted under Section 324 read with Section 149 I. P. C.
14. The 8th and 9th charges related to the attack on P.W.2. On charge No. 8, A-5 and A-9 were found guilty under Section 324 read with Section 34 1. P. C. and A-14 was acquitted of that charge; and on charge No. 9, A-2, 4, 6 to 8, 10 to 13 and 15 to 19 were found guilty under Section 324 read with Section 149 I. P. C.
15. The 10th and 11th charges were with regard to the attack on P.W.4. On charge No. 10 A-14 was convicted under Section 324 I.P.C. and A-12 was acquitted of that charge. On the 11th charge, A-2, 4 to II, 13 and 15 to 19 were found guilty under Section 324 read with Section 149 I. P. C.
16. On charges Nos. 6 to 11, no separate sentences were passed on the convicted accused,
17. Charges Nos. 12 and 13 were with regard to the attack on P.W.5. A-14 and A-15 were charged under Section 324 read with Section 34 I.P.C. and the remaining accused under Section 324 read with Section 149 I. P. C. But all the accused were acquitted of these two charges.
18. On charge No. 15, A-2 was convicted under Section 19(f) of the Indian Arms Act and sentenced to 6 months' rigorous imprisonment.
19. The learned Sessions Judge directed all the sentences to run concurrently.
20. Criminal Appeal No. 2 of 1958 is by the convicted accused viz. A-2, and 4 to 19 against their convictions find sentences.
21. Criminal Appeal No. 135 of 1958 is by the State Government against the acquittal of all the accused including A-1 and A-2 on charges Nos. 2 and 3 pertaining to the murders of Deceased-1 and Deceased-2 respectively.
22. It will be convenient at this stage to set out the case for the prosecution. The village of Nemilladinne had been the hot-bed of factions for two years prior to the occurrence which gave rise to this case. Deceased-1 was the leader of one faction while A-4 was the leader of the rival faction to which all the accused belonged. The feelings between the two parties were bitter. There were several criminal cases between them and at the time of the occurrence security proceedings were pending against both parties.
23. While so, on 7-3-1957 at about 7-30 or 8 a.m., a body of about 40 persons, which included the 19 accused, armed with various lethal weapons, emerged from an adjoining lane, pounced upon the two deceased persons at their house and launched a determined attack on them. At that time Deceased-1 was standing in the doorway of his house: Deceased-2 was seated on the pial in front of the house cleaning his teeth and P.W.5 was sitting by his side while P.W.1, the father of the deceased was sitting on a stone a few yards away from the front of the house and was powdering charcoal for cleaning his teeth.
They were apparently off their guard and were unprepared for the sudden onslaught. A-1 and A-2 who were armed with guns, led the attack. A-1 was the first to appear on the scene. He advanced towards the house of the deceased and fired at Deceased-1, and a big pellet hit him in the forehead and he fell in his tracks. Deceased-2, sensing danger, jumped off the pial and ran for his life. A-2, however, pursued him and shot at him from behind. The bullet hit him in the thigh and he was limping forward. He had hardly gone a few paces when alt the remaining accused i.e., A-3 to A-19 and some others surrounded him in front of Gandla Pulliah's house and attacked him indiscriminately with hatchets and spears causing numerous injuries.
The man died on the spot. P.W.1 who had been witnessing all this, tried to intervene when Deceased-2 was being attacked but he himself was attacked by some of the assailants. Similarly when P.W.2, the sister of the deceased tried to interfere, she was attacked by some of the rioters. P.Ws. 3 and 5 were also assaulted in a similar manner when they tried to intervene. Having hacked Deceased-2 to their hearts' content, the rioters went back to the house of the deceased where Deceased-1 had fallen dead with the first shot and attacked him again with spears and hatchets causing multiple incised injuries; and when P.W.4 the wife of Deceased-1, tried to intervene, she was pushed aside and assaulted by some of the miscreants.
24. Then it is said A-1 fired a shot into the ah and retreated with all the rioters following him. The whole incident lasted about five minutes.
25. We may now refer to the evidence which shows how the police got to know about the occurrence. In March 1957, P.W.17 a police constable attached to Palur Police station had been posted for 'bundobust' duty in the village of Balapanagudur. This village is about a mile from Nemilladinne and a river known as the Kundu flows between the two villages. Early on the morning of 7-3-1957, the date of occurrence, P.W.17 went to the river to answer calls of nature. From there he heard the noise of a 'galata' from the direction of Nemilla-dinne. He crossed over to the Nemilladinne side of the river and eased himself.
As the tumult from Nemilladinne was continuing, he accosted a man who was collecting dung some 50 yards away and asked him what the disturbance was about, and the latter told him that a 'galata' was going on in the village. Apprehending trouble in that faction-ridden village, P.W.17 then and there wrote out a chit, addressed to the Sub-Inspector of Police, Palur Station, intimating to him that a disturbance was going on at Nemilladinne and requested him to come immediately. P.W.17 entrusted the chit to the man who was collecting dung, gave him four annas and instructed him to go to Palur and hand it over to the Sub-Inspector of Police. P.W. 17 then went back to Balapanagudur and after doing petrol duty in that village for some time, took two constables with him and proceeded to Nemilladinne which they reached at 8-30 a.m. There they found the two dead bodies of Deceased-1 and 2 and kept guard over them awaiting the arrival of the Sub-Inspector of Police.
26. Palur is about 5 miles from Nemilladinne. The Sub-Inspector of Police of Palur Station, P.W. 21 received the chit sent by P.W. 17 at about 9 a.m., P.W.21 made a record of it in the general diary and reached Nemilladinne at about 10 a.m. He saw the dead bodies being guarded by P.W. 17. He then recorded a complaint from P.W.1. The complaint is Ex. P-1. In it P.W.1 narrated the events that had taken place that morning, enumerated the names of all the 19 accused and made prominent mention of the parts played by A-1 and A-2. P.W.21 then held inquests over the two dead bodies and examined P.Ws. 1 to 4 at the inquests. The corpses were then sent for autopsy to the Government Hospital at Jammalamadugu. P.W.21 continued the investigation and seized several material objects.
He examined the remaining witnesses in the course of the same day. He found all the accused absconding from the village (A-4 to A-19 belong to Nemjlladine, but A-1 and A-2 belong to Uppalur about a mile away). The Circle Inspector of Police, P.W.19 took over investigation at 11 a.m. He arrested A-1 at Nandyal on 10-3-1957. The other accused were arrested on various dates from 10-3-1957 to 6-4-1957. The charge-sheet was laid against the 19 accused on 23-3-1957. (His Lordship then reproduced the list of injuries found on the victims in paras 27-32 and continued).
33. We have advisedly reproduced the list of injuries found on the victims as the number and nature of injuries give a true indication of the common object animating the unlawful assembly.
34. At the trial the prosecution examined 11 eye-witnesses, viz. P. Ws. 1 to 7, 9, 10, 13 and 14. Of these P.Ws. 1 to 5 sustained injuries in the course of the riot. The learned Sessions Judge relied only on the evidence of P.Ws. 1 to 5 and discarded that of P. Ws. 6, 7, 9, 10, 13 and 14. After a careful perusal of the evidence of the latter set of witnesses, we agree with the learned Judge that their evidence may be left out of account as it is very unsatisfactory, besides its being of a highly partisan character.
35. It is necessary at this stage to give a brief resume of the evidence of P.Ws. 1 to 5 noting the-main points elicited in their cross-examination. (His Lordship after discussing the evidence of P. Ws. 1' to 5 in paras 36 to 43 proceeded:)
44. Now the pleas of the accused may be noticed. All the accused admitted the existence of factions but denied their complicity in the crime. A-1 and A-2 pleaded alibi. A-1's case was that for 10 months prior to the occurrence he had been residing at Nandyal, which is about 40 miles distant from Nemilladinne; that he was doing contract work for the Public Works Department and the Highways Department; that he had met the P.W.D. Executive Engineer at Nandyal at 4 P.m., on 6-3-1957; that he had stayed that night at Nandyal; that on the morning of 7-3-1957 (the date of offence) at about 7 a.m., he met the Junior Engineer of Highways, Balakota Reddi, at Noonepalli, which is within the municipal limits of Nandyal; that the latter took measurements of the work which he (A-1) had done; that he signed in the measurement book and that thereafter he went back to his house at 10 a.m. A-1 added that there is bitter enmity between himself and one Kalugotla Venkatareddi, who had married the daughter of P.W.1's elder brother; that all the prosecution witnesses belong to one party and are related to one another and that the case had been unjustly foisted on him. He admitted that he owns a jeep. He examined five witnesses on his behalf of whom the material witnesses are: Balakota Reddi (D.W. 2) the Junior Engineer of Highways at Nandyal and Hanuman Singh (D.W.4) a 'maistry' in the Highways Department at Nandyal.
45. A-2 also pleaded alibi. His case was that as he was unwell, he was taking medicine from the Doctor of the Government Hospital at Allagadda on the 6th, 7th, 8th and 9th of March 1957 and that he was at Allagadda on all those days. Allagadda is 13 miles from Nemilladinne. He added that there was enmity between him and Kalugotlapalli Venkata Reddy and so a false case had been Put up against him. To substantiate his alibi, he examined one J. A. Peter (D.W.6), the Civil Assistant Surgeon in charge of the Local Fund Dispensary at Allagadda.
46. A-4 to 19 denied having taken part in the occurrence and stated that the evidence against them was false.
47. The learned Sessions Judge accepted the plea of alibi set up by A-1 and acquitted him. He rejected the plea of alibi put forward by A-2 and held that he was present at the sence of occurrence, armed with an unlicensed gun. The learned Judge, however, relying on the evidence of the Doctor, P.W.8 regarding the direction of the gun-shot injury on the thigh of Deceased-2, came to the conclusion that A-2 could not have fired that shot from behind as alleged by the eye-witnesses.
48. As stated supra, out of the eleven eye-witnesses examined by the prosecution, the learned Judge accepted the testimony of only five viz. P. Ws. 1 to 5 and rejected that of P.Ws. 6, 7. 9, 10, 13, and 14. He convicted all the accused except A-1 of the offence of rioting armed with deadly weapons.
49. He acquitted all the accused of the murder of Deceased-1 on the ground that there was no satisfactory proof as to who had fired at him and who had caused him the incised injuries.
50. With regard to the charge relating to the murder of Deceased-2 the learned Judge believed the prosecution evidence that Accused 4 to 19 had struck Deceased-2 with hatchets and spears hut he found Accused 4 to 19 guilty of the lesser offence under Section 326 read with Section 34 I. P. C. for the reason that it was not proved as to who had caused the fatal injury. It will be noted that A-2 was not convicted of this charge although the learned Judge was satisfied that A-2 was a member of the unlawful assembly and was armed with a gun.
51. With reference to the attacks on P.Ws. 1 to 4 the learned Judge, on a careful appraisal of the evidence relating thereto, found that A-4 and A-9 had caused injuries to P.W.1, A-4 by beating him on his left flank with the stick portion of a spear, and A-9 by cutting him with a hatchet on the left forearm, thereby causing a grievous injury; that A-5 and A-9 had caused injuries to P.W.2, A-9 by dealing a blow on her head with a hatchet and A-5 by spearing her on her left palm; that A-14 and A-19 had caused injuries to P.W.3, A-14 by hitting her on the left forearm with the stick portion of a spear and A-19 by spearing her on the head; and that A-14 had hit P.W.4 on the left forearm with the stick portion of a spear and caused an injury.
As regards the injuries sustained by P.W.5 the learned Judge held that it had not been satisfactorily proved as to who had caused those injuries. It will thus he observed that the trial Judge, relying on the evidence of the victims themselves, has found that in the course of the rioting. Accused 4, 5, 9, 14 and 19 had caused injuries to P. Ws. 1 to 4 with hatchets and spears.
52. We shall now advert to the contentions on behalf of the accused and on behalf of the State.
53. The learned advocate for the accused made the following points:-
(1) That the learned Sessions Judge having upheld the plea of alibi set up by A-1. has erred in convicting the accused-appellants on the evidence of P. Ws. 1 to 5, who had deliberately implicated an innocent man in a capital case. Their evidence should have been rejected 'in toto'.
(2) That in the absence of independent evidence, it should be uasafe to act on the interested and highly partisan evidence of P.Ws. 1 to 5.
(3) That the learned Sessions Judge should have accepted the evidence of D.W.6 which established A-2's alibi.
54. On the other hand, the learned Public Prosecutor on behalf of the State advanced the following contentions:
(1) That the trial Judge was in error in accepting the evidence of D.Ws. 2 and 4 in support of A-1's alibi and acquitting A-1.
(2) That the learned Judge has erred in holding that A-2 had not fired the shot which had wounded Dcceased-2 in the thigh.
(3) That even on the findings of the learned Sessions Judge, A-2 and A-4 to 19 should have been convicted of the offence of murder.
55. Therefore the first question for our consideration is whether the learned Sessions Judge was right in acquitting A-1 by accepting his plea of alibi. (After discussing the evidence in paras 56-67 His Lordship proceeded:)
68. For these reasons we are inclined to take a view different from that of the learned Sessions Judge with regard to the alibi and the consequent acquittal of A-1. Even so we are unable to say that there are 'compelling reasons' for our disagreeing with the trial court on a matter which is dependent on an appreciation of oral testimony.
69. In Aher Raja Khima v. State of Saurashtra, (S) : 1956CriLJ426 , their Lordships of the Supreme Court have enunciated the following principle which should guide the High Courts in dealing with appeals against acquittals under Section 417 Cr. P. C.
'It is, in our opinion, well settled that it is not enough for the High Court to take a different view of the evidence; there must also be substantial and compelling reasons for holding that the trial court was wrong'.
Consequently the acquittal of A-1 will have to remain undisturbed.
70. We are, however, far from convinced about the innocence of A-1, and we are clearly of the view that this acquittal by itself does not in the least affect the credibility of the eye-witnesses. The learned Sessions Judge had no such difficulty in judging the case nor, in the circumstances of this case, do we feel any difficulty in acting on the prosecution evidence with regard to such of the accused whose guilt has been established beyond all reasonable doubt. (His Lordship then discussed the evidence in paras 71-73 relating to the alibi pleaded by A-2 and concluded:) We have no hesitation in holding that the plea of alibi set up by A-2 is false, and we have equally no hesitation in accepting the evidence of P.Ws. 1 to 5 the effect that A-2 had chased Deceased-2 and fired a shot at him.
74. Although the learned Sessions Judge believed the presence of A-2 at the scene, armed with an unlicensed gun, and on that footing convicted him of the offence under Section 19(f) of the Arms Act, he was not prepared to accept the evidence of P.Ws. 1 to 5 that A-2 had shot at Deceased-2 and caused a gun-shot wound in the thigh. (After discussing the evidence in para 75, His Lordship concluded:)
76. In our opinion there is nothing improbable in the injury having been caused by A-2 by shooting at Deceased-2 when the man was fleeing for his life.
77. The next question that falls for consideration is as to which of the accused, in addition to A-2, have been satisfactorily proved to have taken part in the occurrence.
78. The learned advocate for the accused has commented on the absence of disinterested evidence in this case; but to insist on independent evidence in faction cases, is to ask for the impossible. It is a matter of common knowledge that in cases arising out of acute factions, as a rule, persons unconnected with either faction, do not dare or care to come forward as witnesses lest they should incur the wrath of the other party. At the same time we are conscious of the Fact that in such cases, especially in cases coming from the Districts of Rayalaseema, there is an incurable tendency in witnesses to rope in the innocent along with the guilty, not so much out of personal animosity but in the hope of furthering the interests of the faction. This is a disquieting phenomenon and is a source of great anxiety to Judges who have to deal with this class of cases. To guard against the danger of condemning innocent persons on perjured testimony, it is imperative that evidence should be scrutinised with more than ordinary care and, in particular, sweeping statements and wholesale implications should be received with the utmost caution.
79. Applying the aforesaid yardstick, we have tried to sift and assess the evidence in this case to ascertain the guilt of the several accused.
80. The learned Sessions Judge has found Accused 2 and 4 to 19 as having formed members of the unlawful assembly and has convicted all of them under Section 148 I. P. C. We have already dealt with the case of A-2. As regards the other accused viz. A-4 to 19 the learned Judge has apparently acted upon the omnibus allegation made by P.Ws. 1 to 5 that all the 19 accused had come on the scene armed with various deadly weapons. In our opinion, having regard to the highly partisan nature of the evidence, it would be extremely unsafe to rely on a sweeping allegation of that kind.
It is hardly likely that in that confusion all these five witnesses could have noted the presence of all the 19 accused. After scanning the evidence of P.Ws. 1 to 5, we have come to the conclusion, that in the circumstances of this case, only such of the accused as have been proved to have taken part in the attack on P.Ws. 1, 2, 3 and 4 can be safely held to have formed members of the riotous assembly which caused the deaths of the two deceased persons and injuries to five of the witnesses.
81. The learned Sessions Judge has held that the evidence does not establish beyond doubt which of the accused had taken part in the attack on Deceased-1. We agree with him in that conclusion.
82. As regards the attacks on Deceased-2, it must be remembered that according to P.W-1, after A-2 had shot at deceased-2 about 40 persons had chased and surrounded Dcceased-2 and hacked him to pieces. Great panic and pandemonium must have prevailed at that time and the evidence of P.Ws. 1, 2 and 3 as to which of the accused had attacked Deceased-2 is neither consistent nor convincing; but when P. Ws. 1, 2 and 3 went to the rescue of Deceased-2, they were beaten by some of the rioters. Similarly P.W. 4 was beaten when she was weeping over her husband, Deceased-1. With regard to the assaults made on P. Ws. 1, 2, 3 and 4, the learned Sessions Judge on a careful scrutiny of the evidence, has accepted the testimony of these witnesses only to the extent of its being consistent with the earlier versions and in so far as the acts of violence attributed to the various accused are corroborated by the wound certificates issued to the victims.
By that process, the learned Sessions Judge has found that A-4 and A-9 had attacked P.W.1 that A-5 and A-9 had attacked P.W.2; that A-14 and A-19 had attacked P.W.3 and that A-14 had attacked P.W.4. The learned Judge was not prepared to believe the evidence of P.W.5 with regard to the accused who were alleged to have attacked him. We agree with the learned Sessions Judge that the evidence of P.Ws. 1 to 4 can be safely acted upon to the extent indicated above. It follows that the presence and participation in the rioting of A-2, A-4, A-5, A-9, A-14 and A-19 have been proved beyond all reasonable doubt.
83. As regards the remaining eleven accused viz. A-6, A-7, A-8, A-10, A-1l, A-12, A-13, A-15, A-16, A-17 and A-18, we give them the benefit of the doubt and acquit them of all charges.
84. The next question for consideration is what ate the offences of which these six accused are guilty? On the facts found by us, these six accused are unquestionably guilty of an offence under Section 148 I. P. C., rioting being armed with deadly weapons --A-2 with a gun, A-4, A-5, A-14 and A-19 with spears and A-9 with a hatchet. We accordingly confirm their conviction and sentence under Section 148 I. P. C.
85. Now turning to the two counts of murder, all the accused were charged under Section 302 I. P.C. read with Section 34 I. P. C. for the murder of Deceased-1 and Deceased-2. However, by a process of reasoning which is most illogical, the learned Sessions Judge has acquitted the accused of both the charges of murder. As regards the murder of Deceased-1, the teamed Judge has acquitted the accused on the ground that the prosecution evidence had not established as to who had fired the fatal shot at de-ceased-1 and who had caused him the ten incised wounds. With regard to the murder of Deceased-2, the learned Judge has convicted A-4 to A-19 only of an offence under Section 326 read with Section 34 I. P. C. on the startling ground which he states thus:-
'I believe the prosecution evidence that A-4 to A-19 struck Dcceased-2 with hatchets and spears but it is not proved who caused the fatal injury. I therefore find A-4 to A-19 guilty of the offence under Section 326 I. P. C.'
86. The reasoning is obviously fallacious. In the first place the victim sustained several fatal injuries. He had 36 incised wounds and one gun-shot wound, and all the vital organs were damaged. The charge was under Section 302 read with Section 34, I.P.C., and so it mattered not which of the accused had struck the mortal blow; and on the Judge's own finding that A-4 to A-19 had attacked Deceased-2, the conviction should have been under Section 302 read with Section 34 I. P. C.
86a. It is surprising that the learned Sessions Judge did not frame charges under Section 302 read with Section 149 I. P. C. and it is equally surprising that he did not record a conviction under Section 302 read with Section 149 I. P. C. in respect of each of the murders. The common object of the unlawful assembly is as clear as noonday. It was, as stated in Charge No. 1, to attack and kill the two deceased persons and their partisans, and in prosecution of that common object, Deceased-1 and Deceasd-2 were attacked and killed with lethal weapons in circumstances of the utmost brutality.
Once it is established that at the time of the commission of the murders, a particular accused was a member of that unlawful assembly, he would be guilty of murder by the operation of Section 149 I. P.C. and his conviction under Section 302 read with Section 149 I. P. C. must inevitably follow. In the circumstances of this case, the omission to frame a charge under Section 149 is of no consequence and no prejudice has been caused to the accused inasmuch as the charge for rioting stated clearly that the common object of the unlawful assembly was to commit murder, and all the accused were also charged under Section 302 read with Section 34 in respect of the two murders on the footing that the murders had been committed in furtherance of the common intention of all the accused.
As the evidence does not clearly establish which of the accused had actually participated in the attack on the two deceased persons, we consider that A-2, 4, 5, 9, 14 and 19, whose active participation in the rioting has been proved beyond doubt should be convicted under two counts for offences under Section 302 read with Section 149 I. P. C. for the murders of Deceased-1 and Deceased-2, and each of these six accused should be sentenced to imprisonment for life on each of those two counts; and we convict and sentence them accordingly. In the absence of prejudice, there is no legal bar to the recording of a conviction under Section 302 read with Section 149 1. P. C. when the accused were charged under Section 302 read with Section 34, I. P. C. If authority were needed for this position, it is to be found in the Supreme Court's ruling in Tilkeshwar Singh v. Bihar State, (S) : 1956CriLJ441 .
87. Under charge No. 4, A-4 and A-9 have been convicted under Section 328 read with Section 34 I. P.C. but the grievous hurt to P. W. 1 was caused by A-9 whereas A-4 caused only a simple injury. We, therefore, convict A-9 under Section 326 and A-4 under Section 324 I. F. C. and maintain the sentence of 3 years' R. I. passed on each of them.
88. Under Charge No. 5, the conviction and sentence of A-2 and A-14 under Section 326 read with Section 149 I. P. C. are confirmed.
89. Under charge No. 6, the conviction of A-14 and A-19 is confirmed; and under Charge No. 7 the conviction of A-2, 4, 5, and 9 is also confirmed.
90. Under Charge No. 8, the conviction of A-5 and A-9 is confirmed, as also the conviction of A-2, 4 and 19 under Charge No. 9.
91. Under Charge No. 10, the conviction of A-14, is confirmed as also the conviction of A-2, 4, 5, 3 and 19 under Charge 11.
92. Under Charge No, 15, the conviction and sentence of A-2 under Section 19(f) of the Indian Arms Act are confirmed.
93. All the sentences are directed to run concurrently. The net result is that Accused Nos. 2, 4, 5, 9, 14 and 19 are punished with imprisonment for life; and Accused 6, 7, 8, 10, 11, 12, 13, 15, 16, 17 and 18 are acquitted and they will be set at liberty. The acquittal of A-1 will stand.
94. The appeal by the Accused and the appeal by the State are allowed to the extent indicated above.