A. Alagiriswami, J.
1. The three petitioners before this Court were tried along with 19 others before the learned Sub-Magistrate, Keeranur, for offences under Sections 147 and 225 read with 149, Indian Penal Code. 19 of the 22 were acquitted. The petitioners alone Were convicted, under Sections 147 and 225, Indian Penal Code, and sentenced to rigorous imprisonment for three months under each count, the sentences to run concurrently. On appeal before the learned Sub-Divisional Magistrate, Pudukkottai, the conviction under Section 147, Indian Penal Code, against the petitioners was confirmed and the conviction under Section 225, Indian Penal Code ,was set aside and the petitioners were sentenced to pay a fine of Rs. 200 each, in default to undergo rigorous imprisonment for two months.
2. It is urged on behalf of the petitioner that three persons alone cannot form members of an unlawful assembly and as the prosecution case as well as the charge Was that only 22 persons before the Court were members of an unlawful assembly and as 19 of them have been acquitted, it should be held that the 19 persons who Were acquitted Were not there, With the consequence that the three remaining persons cannot be held to be members of an unlawful assembly. On behalf of the petitioners reliance is placed upon the decision in Kartar Singh v. State of Punjab : 2SCR395 , where it was observed as follows:
If the Courts below could legally find that the actual number of members in the appellant's party were more than 5, the appellant's party will constitute an unlawful assembly even when only three persons have been convicted. 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 5, that it cannot be held that the assailants' party must have consisted of 5 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.
But this very case has been referred to in the subsequent decision of the Supreme Court in Mohan Singh v. State of Punjab : AIR1963SC174 , where in paragraph 12 at page 180 their Lordships have referred to this Case and have observed as follows:
We, however, think that it would be unreasonable to read this statement as laying down an unqualified proposition that whenever persons named in the charge are alleged to constitute an unlawful assembly it is legally not permissible to the prosecution to prove during the trial that persons in addition to those named in the charge also were members of the said assembly. In other words what this observation intends to suggest is that where persons named in the charge are alleged to compose an unlawful assembly the Court of facts would be slow to come to the conclusion that persons other that those named in the charge were members of the said assembly. If, however, it appears on evidence that persons not so named in the charge were members of the unlawful assembly there is no legal bar which prevents the Courts from reaching that conclusion'. This can and does arise where some of the persons composing the unlawful assembly are not identified by the witnesses and they are not named. In fact the decision in the case of Kartar Singh itself shows that this Court rejected the appellant's contention that their conviction under Sections 302 and 307 read with Section 149 was valid. Therefore, we see no inconsistency between the observations made in this case and the earlier decision to which we have just referred.
The decision in Mohan Singh v. State of Punjab : AIR1963SC174 is in paragraph 9 at page 178, which is as follows:
In dealing with the question as to the applicability of Section 149 in such cases it is necessary to bear in mind the several categories of cases which come before the criminal Courts for their decision. If five or more persons are named in the charge as composing an unlawful assembly and evidence adduced by the prosecution proves that charge against all of them, that is a very clear case where Section 149 can be invoked. It is, however, not necessary that five or more persons must be convicted before a charge under Section 149 can be successfully brought home to any members of the unlawful assembly. It may be that less than five persons may be charged and convicted under Section 302/149 if the charge is that the persons before the Court along with others named constituted an unlawful assembly; the other persons so named may not be available for trial along With their companions for the reason, for instance, that they have absconded. In such a case, the fact that less than five persons are before the Court does not make Section 149 inapplicable for the simple reason that both the charge and the evidence seek to prove that the persons before the Court and others number more than five in all and as such, they together constitute an unlawful assembly. Therefore, in order to bring home a charge under Section 140 it is not necessary that five or more persons must necessarily be brought before the Court and convicted. Similarly, less than five persons may be charged under Section 149, if the prosecution case is that the persons before the Court and others numbering in all more than five composed an unlawful assembly, these others being persons not identified and so not named. In such a case, if evidence shows that the persons before the Court along with unidentified and unnamed assailants or members composed an unlawful assembly, those before the Court can be convicted under Section 149 though the unnamed and unidentified persons are not traced and charged. 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, then 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 the high 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 persons 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 of 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. But there is no legal bar which prevents the Court from reaching such a 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 5 or more persons the unlawful assembly in fact consisted of other persons who were not named and identified. That appears to be the true legal position in respect of the several categories of cases which may fall to be tried when a charge under Section 149. is framed.
The observations would also apply to cases under Section 147. It, therefore, follows that in this case even though only 82 persons were charged before the trial Court and 19 of them were acquitted, it was legally open to the trial Court and the lower appellate Court to find that not merely those 22 persons but a number of other persons were also involved in the commission of the offence with which the accused before the Court were charged, and if it had been so found, the fact that 19 persons have been acquitted and only three have been convicted Would not mean that there is any legal objection to such a conviction. But in this case neither the trial Court nor the lower appellate Court found, as a matter of fact, that a number of others in addition to the 22 people before the Court were members of the unlawful assembly. In the absence of such a finding, it is not possible, to hold that there were other persons who, along With the three convicted, could be said to have formed the unlawful assembly. There is nothing here to show that there were other persons who were either absconding or could not be identified and therefore unnamed and they together with the convicted accused would have constituted an unlawful assembly. In the absence of such evidence and such a finding, the petitioners are entitled to succeed.
3. The Revision Petition is allowed. The conviction and sentence of fine imposed on the petitioners are set aside. The fine amounts, if already paid, will be refunded.