Judgement

S. K. DAS J. - This is an appeal by special leave from a decision of the High Court of Mysore, dated 22-7-1954, by which the convictions and sentences of the appellants were confirmed and their appeals dismissed by the said High Court.

2. The appellants are four in number, (1) Chikkaragne Gowda (accused 1), (2) Govindaraju (accused 3), (3) Govinda Gowda (accused (4), (4) Mathi Kulla (accused 19). The appellants, along with several others, were tried by the learned Sessions Judge of Mysore, who convicted them of the offences under Ss. 148, 302, and 302 read with Ss. 34 and 149 Penal Code. They were sentenced to rigorous imprisonment for three years for the offence under S. 148 Penal Code and to transportation for life for the offences under S. 302 and S. 302 read with Ss. 34 and 149, Penal Code.

Either during the trial or at the time of recording the convictions, the learned Sessions Judge did not make any distinction, nor did he clearly state which of the appellants were guilty of the substantive offence of murder under S. 302 Penal Code, and which of them were guilty of the offence under S. 302 read with S. 149 Penal Code, or on the principle of liability embodied in S. 34, Penal Code. In the High Court also no such distinction appears to have been clearly made, and the concluding paragraph of the judgment of the High Court simply stated that the convictions and sentences of the appellants were confirmed and their appeals were dismissed.

3. It is not necessary to say anything about those others who were convicted by the learned Sessions Judge and whose convictions were upheld by the High Court of Mysore, but who have preferred no appeals to this Court. The facts so far as they are relevant for the purpose. of this appeal may be very shortly stated. There were two brothers named Putte Gowda and Nanje Gowda. On 18-4-1951 the two brothers were in the house of one Madamman, a concubine of Putte Gowda, in the town of Talkad, stated to be a fairly populous town and a place of pilgrimage situate at a distance of about 30 miles from Mysore.

At about noon on that day, a mob of persons numbering about more than a hundred, rushed towards the house, sprinkled kerosene oil on the roof, and started burning the house. When the inmates of the house came out, the two brothers (Putte Gowda and Nanje Gowda) were brutally assaulted. Putte Gowda died then and there. Nanje Gowda lay unconscious and was taken to the hospital where he expired the same evening, the first information report of the occurrence was sent by the Daffadar to the Inspector of Police, who arrived the same night and made a preliminary investigation.

So far as the four appellants are concerned, the allegations was that they were members of the aforesaid mob: and that appellant 1 (Chikkarange Gowda) hit Putte Gowda on the abdomen with a cutting instrument and appellant 4 (Mathi Kulla ) hit Putte Gowda on the Knee with a chopper; the second appellant Govindaraju, it was alleged, hit Nanje Gowda with a spear, and the third appellant Govinda Gowda hit Nanje Gowda on the head with an axe.

4. We have already stated that several charges were framed against the appellants. It is necessary to read at least one of the charges, viz., the charge which was framed for the offence stated to be under S. 302 read with Ss. 149 and 34, Penal Code; because much of the argument before us has centered round that charge. The fifth charge against appellant 1 was in these terms:

"That you on or about the 18th day of April, 1951 at Talkad were member of an unlawful assembly and in prosecution of the common object or intention or such as you knew to be likely to be committed in prosecution of that object or intention namely in killing Putte Gowda, caused the death of Putte Gowda and Nanje Gowda, and you are thereby under S. 149 read with S. 34, Penal Code, guilty of causing the said murders, an offence punishable under S. 302 Penal Code and within the cognizance of the Court of Session."

Against the oth