Judgment

FAZAL ALI, J.:- This appeal by special leave is directed against the judgment of the Sessions Judge, Greater Bombay dated 3rd March, 1975. The appellants were convicted by the Metropolitan Magistrate under Sections 147, 426/149 and 506 and sentenced to three months rigorous imprisonment under each count. The sentences were directed to run concurrently. By the time the Metropolitan Magistrate decided the case the new Criminal Procedure Code, 1973 came into force and, therefore, the appellants filed a revision to the Sessions Judge. The Sessions Judge after going through the evidence affirmed the decision of the Magistrate and confirmed the convictions as also the sentences imposed on the appellants by the trial magistrate. It appears that in view of a decision of Division Bench of the Delhi High Court that no appeal lay in the presents case as the new Code of Criminal Procedure 1973, had already come into force and since the appellant had taken the matter in revision to the Sessions Judge, a further revision to the High Court was not maintainable. The correctness of the view of the High Court has been assailed before us by the learned counsel for the appellants but in the circumstances of this case we do not want to decide that question because we have decided to enter into the merits of the case as the appellants were deprived of a right of appeal in this matter. According to the evidence the appellants forming members of a morcha constituted an unlawful assembly only when it transcended its limits and strated committing violence by throwing bricks-bats on the houses of some of the prosecution witnesses. Actually, the occurrence took place as a result of a dispute between two rival unions. A perusal of the evidence clearly shows that the entire morcha consisting of 300 to 400 persons was in the first instance peaceful but became violent only when some of the members of the assembly started pelting stones and damaged the glass panes of the houses of some of the prosecution witnesses. It is true that the Sessions Judge as also the Magistrate had held that the appellants were members of the unlawful assembly but the courts below have viewed this case from an absolutely wrong angle of vision. Before the appellants could be convicted of sharing the common object of the assembly or of being members of the same at a time when the assembly became unlawful, it had to be proved by the prosecution that the appellants were members of the unlawful assembly at the time when assembly became unlawful and started pelting stones. To begin with there is no such evidence in this case. The evidence merely shows that the appellants were members of the morcha but there is absolutely nothing to show that they were members of the unlawful assembly when the members of the assembly started pelting stones. P. W. 1 who is a complainant and a full-fledged eye-witness had lodged the F. I. R. on the 21st June, 1972 in which he did not mention the names of any of the appellants. That by itself is a serious infirmity in the prosecution case which is sufficient to throw doubt on the truth of the version presented by the prosecution. No explanation for the omission of the names of the appellants has been given in the statement of the complainant and in absence of any explanation this appears to us to be a manifest defect in the prosecution case on which alone the appellants are entitled to an acquittal, more particularly when the complainant says categorically in his evidence that accused 1, 3, 4, 5, 10 and 11 were heading the morcha. Indeed if this was so then we would have expected the complainant to mention at least these names in the F. I. R. It is true that P. W. 1 in his deposition has stated that the morcha was shouting and after some time stones were thrown at this house but he does not state anywhere in the evidence that at the time when stones were being thrown, appellants continued to be members of the morcha. Strong reliance was placed on the