JUDGMENT

V . RAMASWAMI, J.:— The appellants along with 11 others were tried for causing the murder of one Appikatla Tataiah, and for causing injuries on Jarugu Rama Koteshwararao (PW 2) on 24th June, 1981 near Manchineeti Chruyu(fresh water tank) at or about 8.00 p.m. in Machavaram village.

2. The learned Sessions Judge, Krishna Division, Machilipatnam by his judgment dated 16-7-1982 acquitted A-3, A-4, A-6 to A-10, A-12 and A-15 of all the charges. He convicted Kurakula Nagamelleswararao (A1), Jarugu Kotaiah (A-2), Appikatla Krishnamurthy(A-5) and AppikatlaNagulu(A-11) under Section 148, Indian Penal Code and sentenced each of them to undergo two years rigorous imprisonment. A-1 was further convicted under Section 302, I.P.C. and sentenced to imprisonment for life. A-2 was convicted under Section 302 read with Section 34, I.P.C. and sentenced to imprisonment for life. A-5 and A-11 were convicted under Section 302 read with Section 149, I.P.C. and each of them was sentenced to undergo imprisonment for life. Regarding the attack on PW-2 Jarugu Rama Koteshwararao the learned Sessions Judge convicted A-1 and A-2 under Section 326, I.P.C. read with Section 149 and sentenced each of them to undergo rigorous imprisonment for four years. The learned Judge further convicted A-5 and A-1 1 under Section 24, I.P.C. for causing simple hurt to PW-2 and sentenced each one of them to undergo rigorous imprisonment for two years. A-1 and A-2 were also convicted under Section 324 read with Section 149, 1. P. C. and each of them was sentenced to two years rigorous imprisonment. The sentences awarded against each accused under various grounds were ordered to run concurrently.

3. The convicted accused preferred Criminal Appeal No. 604 of 1982 and the State appealed against the acquittal of the rest of the accused in Criminal Appeal No. 630 of 1983. At the time of admission of appeal, however, the State appeal was dismissed as against A-9, A- 10, A- 12, A- 13, A- 14 and A- 15 and it was admitted only as against acquittal of A-3, A-4 and A-6 to A-8. The High Court confirmed the conviction and sentence of A-1, A-2, A-5 and A-11 under Section 148, I. P. C. However, it altered the conviction of A-1 and A-2 under Section 302, I. P. C. and Section 302 read with Section 34 respectively into one under Section 302 read with Section 149, I.P.C. and the sentence for imprisonment for life was confirmed. The conviction of A-5 and A-11 under Section 148 and Section 302 read with Section 149 and the sentences awarded thereunder were also confirmed. The High Court also confirmed the conviction and sentences on the accused under Sections 326 and 324 read with Section 149 and Sections 324 and 326 read with Section 149, I. P. C. The sentences were directed to run concurrently. The learned Judges of the High Court dismissed the appeal preferred by the State in respect of acquittal of the other accused.

4. In this appeal Sh. Santosh Hegde, Senior Advocate appearing for the accused appellants did not canvass the conviction of the four appellants, namely, A-1, A-2, A-5 and A-11 under Sections 324 and 326, I.P.C. and Section 324 read with Section 149, I. P. C. and Section 326 read with Section 149, I. P. C. in relation to the attack on PW-2 but without prejudice to his contention that on the facts Section 149, I.P.C. could not have been invoked in relation to the offence under Section 302, I.P.C. This stand was taken on the basis that the appellants had already served or had almost finished serving the four year term which was awarded for those offences. The conviction and sentence under Section 148 was also not canvassed for the same reason without prejudice to the above said contention. He confined his arguments against the convictions and sentences of A-1, A-2, A-5 and A-11 under Section 302 read with Section 149, I. P. C. The argument of the learned counsel for the appellant was that in the absence of specific finding to the effect that apart from the four appellants the