Judgment

DUA, J.:- In this appeal by special leave directed against the order of the Andhra Pradesh High Court, the only question canvassed on behalf of the appellants before us relates to the plea of private defence raised by them at the trial. The appellants who are ten in number were tried on as many as 22 charges by the Court of Additional Sessions Judge, Masulipatam and acquitted of all the charges. On appeal by the State against their acquittal there was a difference of opinion between the two Judges of the High Court constituting the Division Bench hearing the appeal. Whereas Sharfuddin Ahmed, J., upheld the order of acquittal on the basis of the plea of private defence, Mohd. Mirza, J., was of the opinion that the prosecution case was proved by overwhelming evidence. The case was in consequence laid before Basi Reddy, J., as provided by Section 429, Criminal Procedure Code. That learned Judge accepted the prosecution case and convicted the appellants on some of the charges. He expressed his final conclusion thus:

"I shall now indicate the charges upon which the accused should be convicted and the sentences that should be imposed:

On charge No. 2, I would convict accused 1, 3 and 5 to 9 under Section 147, Indian penal Code and on charge No. 3 accused No. 2, 4 and 10 and sentence each of accused 1, 2, 3, 4 and 5 to pay a fine of Rs. 500/-, in default each to suffer six months rigorous imprisonment. I would sentence each of accused 6 to 9 (who are farm servants) to pay a fine of Rs. 100/- in default to suffer two months rigorous imprisonment. I would sentence accused 10 to suffer rigorous imprisonment for two years.

2. On each of charges Nos. 4, 5 and 6 which pertain to the three counts of murder, I would convict and sentence accused 10 to suffer imprisonment for life under Section 302, Indian Penal Code.

3. On charge No. 11, I would convict and sentence accused No. 10 to suffer two years rigorous imprisonment under Section 326, Indian Penal Code for having caused grievous hurt to P. W. 6 by shooting at him with the gun.

4. On charge No. 22, I would convict accused 10 under Section 19 (a) of the Indian Arms Act and sentence him to suffer one year s rigorous imprisonment.

I would direct all the sentences of imprisonment passed on accused 10 to run concurrently. I would uphold the order of acquittal on other charges.

The net result will be that accused 10 will have to undergo imprisonment for life; accused 1 to 5 will each have to pay a fine of Rs. 500/-; and accused 6 to 9 will each have to pay a fine of Rs. 100/". The final order of the High Court on appeal followed the opinion expressed by Basi Reddy, J. The charges on which the appellants were convicted are these:

".... .... .... .... .... ....

Secondly: that you accused Nos. 1, 3 and 5 to 9 along with accused Nos. 2, 4 and 10 at about 10 a. m. on 10-9-61 at the same place and in the course of the same transaction as set out in charge No.1 above, formed yourselves into an unlawful assembly, and in prosecution of the common object of such assembly viz., beating and killing the members of the party that came in support of the occupiers of Gabbilalakunta, committed an offence of rioting punishable under Section 147, Indian Penal Code and within my cognizance;

Thirdly: that you accused Nos. 2, 4 and 10 along with accused Nos. 1, 3 and 5 to 9 at the same time and place in the course of the same transaction as set out in charge No. 2 above, were members of an unlawful assembly and did in prosecution of the common object of such assembly, viz., beating and killing the members of the party that came in support of the occupiers of Gabbilalakunta, did commit an offence of rioting and that at that time, the accused Nos. 2 and 4 were armed with deadly weapons to wit, spears and the 10th accused was armed with a D. B. B. L. Gun and thereby committed an offence punishable under Section 148 of the Indian Penal Code and within my cognizance;

Fourthly: that you accused No. 10 at the same time