A.N.Ray, J.

(1) THIS is an appeal by special leave from the judgment, dated February 8 and 9, 19968 of the High court of Gujarat acquitting accused Nos. 1, 2, 3, 4 and 7 of the charge levied against them and setting aside the conviction under S. 302, read with S. 149 and S. 34 and Sections 147 and 148 of the Indian Penal Code and the sentence of imprisonment passed by the Sessions Judge

(2) THE appellants were accused Nos. 1,2, 3, 4 and 7. They were charged for having formed an unlawful assembly with the common object and intention of killing five persons, namely, Allauddin Alimohmed Marodia, Allauddin Nasir Kadiwalla, Suleman Janmohmed Sunsara, Suleman Vasir Mukhi and Noormohmcd lbrahim Badarpura and in the prosecution of that common, object and intention accused No. 1 had armed himself with a gun, accused No. 2 with an axe and knife, accused No. 3 with an axe, accused No. 4 with a Dharia and thus committed an offence punishable under S. 302, read with S. 34, S. 302, read with Section 149 and Suctions 147 and 148 of the Indian Penal Code. Accused No. 1 was also individually charged for committing the murders of the aforementioned live persons. Accused Nos. 2, 3, 4 and 7 were charged for causing injuries to all the five persons with axe and Dharia and thus each of them was charged for having committed an offence punishable under Section 302 of the Indian Penal Code. Accused No. 1 was further charged for an offence punishable under S. 25(1)(a) of the Indian Arms Act and accused Nos. 3 and 4 were charged for robbing the wrist-watches of the deceased and thus having committed an offence punishable under S. 404 of the Indian Penal Code.

(3) THE accused belonged to a sect called "Barelvi". The five deceased belonged to a sect called "Dev-Bandhi" There were religious differences between the two sects. The Dev-Bandhis believed that God is the only one omniscient while the other sect believed that the Prophet is also omniscient along with God. The Dev-Bandhis had followers of about 50 to 60 families. The Barelvis had many followers of about 300 to 400 families. The two sects belonged to village Basu in the Vedgam Taluka of the Banaskantha District in Gujarat. There was a Waqf in the village and trustees were appointed regarding the management of the properties. One of the trustees was father of accased No. 1. There was another trustee of the Dev-Bandhis. There was one Maulvi who belonged to the Barelvis. The followers of the DevBandhis wanted a separate teacher for their children. The two sects were at logger-heads.

(4) IN the year 1966 a case under Ch. VIII of the Code of Criminal Procedure in relation to security for the peace and for good behaviour was filed against the Dev-Bandhis and accused Nos. 1 and 2 figured as opponents along with others. The 5 deceased were also figuring as opponents in another case under the same Ch. which had been filed in the same court at the instance of the followers of the Barelvis. The hearing of the cases was fixed on 18/01/1967. The 5 deceased came in a jeep. Their case was adjourned till 25/01/1967. These 5 persons after finishing their work in court went to their village Bhagat about 8 miles away from Basu. About 10 p. m. they left for their village Basu. The acccused lay in wait for those 5 persons. Altogether there were 8 accused. They shot the five dead with gun and inflicted injuries with sharp-edged weapons and brutally murdered them. The brother of the deceased Allauddin Alimohmed heard on 18/01/1967, that there was some quarrel at village Basu. On his way from Changa to Basu he saw 5 dead bodies. Three were in a jeep and two were lying on the road near the jeep. He thereafter informed his brother Valimohmed and another person called Kadiwalla what he had seen. Valimohmed then left village Basu to file a complaint. Accused Nos. 1 and 2 were arrested on 20/01/1967. Accused Nos. 3 and 4 were arrested on Janu 21/01/1967. Accused No. 7 was arrested on 23/01/1967.

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