The conviction of the appellants under Ss. 149 and 34 of the Indian Penal Code was valid, as the court found that the unlawful assembly consisted of more than five persons, including the appellants and some unidentified persons, that the appellants had the necessary common intention to kill the three brothers, and that they participated in the assault in furtherance of that common intention.

Judgment

S. K. Das, J.: This is an appeal by special leave. The two appellants are Mepa Danna and Vashram Dana. The learned Sessions Judge of Rajkot tried them along with ten other persons for various offences under the Indian Penal Code, including the offence of murder punishable under section 302 read with Ss. 149 and 34 of the Indian Penal Code. Of the twelve persons whom he tried, the learned Sessions Judge acquitted seven. He convicted five of the accused persons. The two appellants were sentenced to death, having been found guilty of the offence under section 302 read with S. 149, as also S. 302 read with S. 34, Indian Penal Code; the other three convicted persons were sentenced to imprisonment for life. No separate sentences were passed for the minor offences alleged to have been committed by them.

2. All the convicted persons preferred an appeal to the High Court of Bombay. There was also a reference by the Sessions Judge under S. 374, Code of Criminal Procedure, for confirmation of the sentence of death passed on the two appellants. The appeal and the reference were heard together and by its judgment pronounced on April 2, 1959, the High Court affirmed the conviction of four of the convicted persons, namely, the two appellants and two other convicted persons who were accused Nos. 1 and 11 in the trial court. The High Court allowed the appeal of accused No. 8 and set aside the conviction and sentence passed against him. It is worthy of note here that as a result of the judgment pronounced by the High Court, the number of convicted persons came down to four only. We are emphasising this circumstance at this stage, because one of the arguments advanced on behalf of the appellants with regard to their conviction for the offence punishable under S. 302 read with S. 149 centres round this fact. We had earlier stated that the number of persons whom the learned Sessions Judge tried was twelve only. However, the prosecution case which we shall presently state in a little greater detail was that there were altogether thirteen accused persons who constituted the unlawful assembly and committed the offences in question in prosecution of the common object of the assembly or in furtherance of the common intention of all. One of them, however, was a juvenile and was tried by a Juvenile Court under the Saurashtra Children Act,1956. That is why the number of accused persons before the learned Sessions Judge was twelve only. The case record before us does not disclose the result of the trial in the Juvenile Court though it has been stated on behalf of the appellants that that trial ended in an acquittal.

3. It is necessary now to state what the prosecution case against the twelve accused persons was. There is a village called Nani Kundal within police station Babra in the district of Madhya Saurashtra. In that village lived one Shavshi, who had four sons called Kurji, Harji Mitha and Virji. One Dana Bharwad, described as accused No. 1 in the trial court, also lived in the same village. He had three sons called Amra, Mepa and Vashram. We have already stated that Mepa and Vashram are the two appellants before us. In the beginning of the year 1958 Amra was murdered and Harji and Mitha were tried for that murder by the learned Sessions Judge of Rajkot. He, however, acquitted them on May 14, 1958. This caused dis-satisfaction to Dana and his two sons Mepa and Vashram. On July 14, 1958, Harji Mitha and Virji went to a place west of the village where they had a cluster of huts. This place was north of another cluster of huts belonging to Dana. When the aforesaid three brothers were engaged is some agricultural operations, they were attacked by a mob of persons led by the two appellants who were armed with axes. Harji was pounced upon and felled by blows. He managed to get up and ran towards the village. Simultaneously; Mitha and Virji also ran more or less in the same direction. The three brothers were, however, pursued. Kurji, the fourth brothe