S. Acharya, J.
1. This revision is against the appellate judgment of the Sessions Judge, Balasore, maintaining the conviction and sentence of the petitioners under Section 143, I.P.C., while setting aside their conviction under Section 379, I.P.C, and the sentence passed thereunder.
2. Fourteen accused persons Including the petitioners were prosecuted for charges under Sections 143 and 379, I.P.C. on the allegation that these fourteen persons entered into the plot of land, settled with P.W. 1, the Ex-Choukidar, by breaking open the fence, and destroyed therein his hut and the vegetable plants, and carried away therefrom vegetables worth Rs. 100. Those fourteen persons were convicted in the trial court for both the above mentioned offences. The appellate court acquitted all of them of the charge under Section 379, I.P.C. on the finding that there was no clear evidence against them regarding their actually carrying away vegetables from the place of occurrence. The court below while finding that the charge under Section 143, I.P.C. was well proved against the petitioners, recorded a finding, in the same strain, as follows:
'No charge is proved against other appellants or against the deceased accused Kasi Das.'
Most of them were given the benefit of doubt and one of them 'was found not to be actually present at the spot. The number of the members of the unlawful assembly who allegedly participated in the above mentioned acts was definite and they were all ascertained and named persons. It was not alleged in this case that these fourteen accused persons along with others formed the said unlawful assembly. On such facts Mr. Roy con-j tended that eleven out of those fourteen named and ascertained accused persons having been acquitted, the remaining three accused persons, the petitioners herein, could not on the facts of this case, be held to be members of an unlawful assembly, so as to be convicted under Section 143, I.P.C. In support of his above contention Mr. Roy cited the decision in Kartar Singh v. State of Punjab, AIR 1961 SC 1787 the relevant portion of which is as follows:
'It is only when the number of the alleged assailants is definite' and all of them are named, and the number of persons found to be proved to have taken part in the incident is less than five, then It cannot be held that the assailants' party must have consisted of five or more persons. The acquittal of the remaining named persons must mean that they were not in the incident. The fact that they were named, excludes the possibility of other persons to be in the appellant's party and especially when there be no occasion to think that the witnesses naming all the accused could have committed mistakes in recognising them.'
In Mohan Singh v. State of Punjab, AIR 1963 SC 174 their Lordships of the Supreme Court dealt with the applicability of Section 149 in several categories of cases which generally come before the criminal courts for their decision. The observations of their Lordships relevant to the present case may profitably be quoted below:
'Cases may also arise where in the charge, the prosecution names five or more persons and alleges that they constituted an unlawful assembly. In such cases, if both the charge and the evidence are confined to the persons named in the charge and out of the persons so named two or more are acquitted leaving before the court less than five persons to be tried. Section 149 cannot be invoked. Even in such cases, it is possible that though the charge names five or more persons as composing an unlawful assembly, evidence may nevertheless show that the unlawful assembly consisted of some other persons as well who were not identified and so not named. In such cases either the trial court or even theHigh Court in appeal may be able to come to the conclusion that the acquittal of some of the persons named in the charge and, tried will not necessarily displace the charge under Section 149 because along with the two or three persona convicted were others who composed the unlawful assembly but who have not been identified and so have not been named. In such cases, the acquittal ol one or more persons named in the charge does not affect the validity of the charge under Section 149 because on the evidence the court of facts is able to reach the conclusion that the persons composing the unlawful assembly nevertheless were five or more than five. It is true that in the last category of cases, the court will have to be very careful in reaching the said conclusion. The failure to refer in the charge to other members of the unlawful assembly unnamed and unidentified may conceivably raise the point as to whether prejudice would be caused to the persons before the court by reason of the fact that the charge did not indicate that unnamed persons also were members of the unlawful assembly. But apart from the question of such prejudice which may have to be carefully considered, there is no legal bar preventing the court of facts from holding that though the charge specified only five or more persons, the unlawful assembly in fact consisted of other persons who were not named and identified.'
The counsel appearing for both the parties depended on the salutary observations made above by their Lordships. As stated earlier, the present case started and proceeded specifically against fourteen named accused persons only. Eleven out of those fourteen identified and named persons who alone participated in the alleged occurrence were acquitted, as stated above. The acquittal of eleven named and identified persons would mean that they were not in the inicidents. The prosecution case that only the named and identified fourteen persons associated themselves in the alleged unlawful assembly and participated in the above mentioned offences, excludes the possibility of other persons in that assembly. There is also nothing from which it can be said that the prosecution witnesses who named all the accused persons might have committed mistakes in recognising and identifying some other persons in that assembly. Both the charge and the evidence are confined to the fourteen named accused persons, and out of these persons eleven were acquitted by the court below leaving before the court only three persons. There is no legal evidence on record from which it can be definitely said that along with these three persons convicted under Section 143, I.P.C. there were others in the alleged unlawful assembly who could not be identified and so were not named. In Motiram Bajirao y. State of Bombay. AIR 1960 Bom 515 it is held that it is essential that the prosecution must satisfactorily prove the existence of five or more persons in the alleged unlawful assembly; and where the prosecution case is that the unlawful assembly consists of five or more persona who are all named, and if the court in such a case entertains a reasonable doubt as to the presence of some of the named persons and the number of the remaining persons is less than five, the result would be to cast a reasonable doubt on the presence of at least five persons in the said unlawful assembly,
3. On the above facts, discussions and considerations the conviction of these three petitioners under Section 143. I.P.C. cannot be maintained. Accordingly, therefore, their conviction under the said section and the sentence imposed thereunder are hereby set aside and they are acquitted of the same. Fines, if paid by them, be refunded to them forthwith.
The revision accordingly is allowed.