1. The main question raised is this. Three known and named persons were charged with dacoity along with two other unknown men. The jury acquitted one of the three and convicted the other two of the offence with which they had been charged. Mr. Vaz argues that the conviction is illegal as the jury has no jurisdiction to substitute for a man known and named one who was unknown. We are not prepared to go that length. We think that it was quite open to the jury, while holding that one of the accused who was supposed to have been known to the witnesses had not been property identified, to find that the total number of dacoits was five. At the same time we are of opinion that, when they acquitted the 2nd accused, the Judge should have asked them definitely whether they had considered the possible result of the acquittal and whether they still found that the number of robbers was five. Nothing of the sort was, however, done and it is impossible to say what the finding of the jury would have been had those questions been put to them. It is not at all unlikely that the petitioners before us would have been found guilty only of robbery and received much lighter sentences.
2. The convictions must be set aside. We, however, see no necessity to direct a retrial. The petitioners have been in jail for several months, a quite adequate punishment for what appears to have been no more than a drunken brawl. The petitioners will be released from custody.