Judgment

BEG, J:- This is an appeal by special leave by one out of 118 persons who were prosecuted for participation in a serious riot on August 1, 1965, in village Ganiari, Tehsil Bilaspur, in the State of Madhya Pradesh, as a result of which several persons were attacked with sharp edged weapons and three of them died of wounds sustained by them. Five accused persons were discharged by the Committing Magistrate. One hundred and thirteen persons were jointly tried for various offences punishable under Sections 147, 148, 302, 307, 325 and 323 Indian Penal Code. Charges were also alternatively framed under Ss. 302/149 323/149, 323/149 and 325/149 against all of them. An Additional Sessions Judge of Bilaspur acquitted sixty one accused persons and convicted fifty two persons. He found all the convicted persons guilty under Section 147, I. P. C. and sentenced them to two years rigorous imprisonment. We need only mention the other convictions of the appellant before us. He was held guilty under Sections 304 (1)/149, I. P. C. and sentenced to five years rigorous imprisonment and under Sections 325/149, I. P. C. and sentenced to two years rigorous imprisonment, and under Sections 323/149, I. P. C. and sentenced to a month s rigorous imprisonment

2. On appeals by the convicted persons as well as by the State Government, the High Court, while convicting only fourteen persons, including the appellant, altered his conviction under Section 304 (1)/149, I. P. C. into three convictions under Sections 302/149 for the murder of three persons Badlu, Santu, Chhote Bhurwa, but it made the sentences of life imprisonment concurrent for the three offences. It maintained the other convictions and sentences passed by the learned Sessions Judge.

3. Learned Counsel for the appellant has tried to advance some arguments to assail the conviction of the appellant for participation in rioting. But, we are not impressed by any of the criticisms levelled against six witnesses relied upon by the Trial Court as well as the High Court: Baliram, P. W. 1, Ganesh Rao, P. W. 2, Gangaram, P. W. 3, Bade Bhurwa, P. W. 4, Kabra, P. W. 5, and Lulwa, P. W. 7. The unshaken evidence of these witnesses had established that the appellant had participated in the riot, and chased the victims, and even inflicted some minor injuries on Baliram, P. W. 1. But, beyond that, the participation of the appellant in the actual acts of cutting the limbs of the three persons, who eventually died of profuse bleeding, was not deposed to by any prosecution witness.

4. Although we are unable to disturb the concurrent finding of the fact by the Trial Court and the High Court of the participation of the appellant in the serious riot which took place on 1-8-1965 in village Ganiari, we are also unable to concur with the view of the High Court that, on facts established, the common object of the unlawful assembly was necessarily to cause the death of the three individuals who, unfortunately, lost their lives as a result of the out-burst of frenzy of an outraged mob against persons who, according to the learned Sessions Judge, had given cause to the villagers to be seriously displeased with their nefarious activities.

5. The learned Sessions Judge, while convicting the appellant under Section 304 (1), had observed :

"I am inclined to take a lenient view of these killings because the persons killed had become a nuisance to the village community and their criminal acts knew no bounds or rationality. A time comes when even an orderly society revolts finding no relief in the regular course. Though such acts are not permissible even in such cases and cannot be encouraged yet due discrimination was not lost sight of by the assailants and severe penalty is thus not called for in the present case."

We do not consider these reasons of the learned Sessions Judge, who had given them for convicting the appellant together with other accused persons under Sections 304 (1)/149, I. P. C and sentencing them to five yea