I.D.DUA, J.

(1) THESE four appeals by special leave are directed against a common judgment of the Assam and Nagaland High court acquitting the respondents of the offence under S. 302/149, Indian penal code and will be disposed of by a common judgment. The four respondents in these appeals were convicted of the offence under the above S. by the Additional Sessions Judge)Gauhati, in whose court they were tried jointly along with Nirendra Basumatari. The victim of the offence was one Moni Ram Kotwal.

(2) NIRENDRA Basumataris conviction under Section 302, Indian penal code, was upheld by the High court but there being no appeal on his behalf against that order in these appeals we are not concerned with his conviction.

(3) THE prosecution story may now be briefly stated. On 20/05/1962) at about 10 or II a, m. the deceased Moni Ram alias Dhanbahadur and some; other Nepali persons were grazing their cattle in Angarkata government Grazing Reserve which is described by P. W. 2; the informant, as Koirani Reserve. The four respondents with Nirendra Basumatari, armed with deadly weapons like bows, arrows and Lathis tried to take the grazing cattle for impounding them on the plea that these cattle had strayed into their thatched field in the Reserve. On protest being raised by the graziers the accused persons assaulted them and Nirendra Basumatari (whose case is not before us), younger son of accused Barga Dewani (respondent inCr. A. No. 76 of 1967), shot an arrow at Mani Ram and killed him. There were about 16 or 17 Kacharis present at the place of occurrence on the side of the accused persons. Angresh (respondent in Cr. A. 77 of 1967), is alleged to have hit P. W. 2 on his head with a Lathi. Barga Dewani) it is the prosecution case, instigated the accused persons to assault the graziers. Suren and Nibaran, another son of Barga Dewani (respondents in Cr. As. Nos. 78 and 79 of 1967 respectively),were also alleged to have shot arrows at the cow-herds.

(4) THE Trial court convicted them all under S. 302/149, Indian penal code and sentenced them to imprisonment for life. That court observed that though Barga Dewani is an old man and has himself not armed, he was never theless the leader of the accused and should have known the offence likely to be committed the unlawful assembly.

(5) ON five appeals having been preferred to the High court that court in a some what sketchy common judgment allowed the appeals of the four respondents and dismissed that of Nirendra Basumatari. The High court took the view that there was nothing on the record to show that the common object of the assembly was to cause death or to commit murder. It further held the charge framed by the Trial court to be defective and observed that a charge under Section 147 or Section 149, Indian penal code, should also have been framed against the accused persons.

(6) IN this court on behalf of the State it was strongly argued that the High court was wrong in acquitting the respondents. Reliance in support of the challenge to the view taken by the High court was placed on the language of Section 149, I. P. G. and reference was also made to the decision of this Court in Mazaji and Another v. The State of U. P.

(7) IT is not doubt true that, according to the High court, the appellants before it had on the day of the occurrence constituted an unlawful assembly armed with deadly weapons. But that court acquitted the four appellants before it (who are respondents in this court) on the ground that there was nothing on the record to indicate that the common object of the unlawful assembly was to commit murder of the deceased. In the opinion of the High Court the charge also disclosed the common object of the unlawful assembly to he only to commit assault. It is on this reasoning that the High court convicted Niren alone of murder and acquitted the rest. It was argued in this court on behalf of the appellant, the State of Assam, that the Hi