JUDGMENT

P. VENKATARAMA REDDI, J.-- The three appellants herein are Accused A-2, A-3 and A-4 in Sessions Case No. 30 of 1989 on the file of the First Additional Sessions Judge, Gulbarga. They, along with nine others, were charged with the offences under Sections 147, 148 and 302 read with 149 IPC. Accused 7 died during the pendency of the sessions case. The other eleven accused including the appellants herein were acquitted by the trial court. The State of Karnataka filed the appeal in the High Court questioning the acquittal. During the pendency of the appeal, Accused 1 died. Hence the appeal had abated against him. The High Court, on reappreciation of evidence, held that the trial court acquitted Accused 1 to 4 "on flimsy grounds by rejecting the evidence of PW s 4 and 5 and other circumstantial evidence". The High Court observed that no second view was possible as far as the guilt of Accused 1 to 4 was concerned. The High Court felt that the trial Judge gave undue importance to minor aspects in rejecting the testimony of PWs 4 and 5. Accordingly, the High Court allowed the appeal to the extent of convicting Accused 2 to 4 (the appellants herein). As A-1 died, he was not convicted, though A-1s complicity was held proved. The three appellants were convicted under Section 302 IPC read with Section 149 IPC and sentenced to life imprisonment. As regards the other accused persons, the High Court was of the view that A-5 to A-12 reached the spot only after the other four accused attacked the deceased Mahadevappa and that these persons did not share the common object with Accused 1 to 4 and the attack did not continue after they came to the scene. Hence Accused 5 to 12 were acquitted on benefit of doubt.

2. Aggrieved by the reversal of acquittal by the High Court, the present appeal is filed by Accused 2 to 4.

3. At the outset, we may point out that there is a palpable error in the judgment of the High Court concerning the provision under which the appellants were convicted. As an unlawful assembly consists of five or more persons and the accused other than A-1 to A-4 having been acquitted on the ground that they did not share the common object, the conviction under Section 302 with the aid of Section 149 IPC is clearly unsustainable. On the finding of the High Court, the number of persons of the unlawful assembly is less than five. If at all, they can be convicted under Section 302 read with Section 34 IPC or Section 302 simpliciter. Another patent error in the High Courts judgment is the reason given by the High Court for acquitting A-5 to A-12. The High Court wrongly assumed that A-5 to A-12 reached the spot after the assault by A-1 to A-4 and that none of them were with the other four accused initially. But the very evidence of the eyewitnesses on which the High Court placed reliance is otherwise. They attributed varied roles to Accused 5 to 12 at various stages of the incident. Thus, the ground of acquittal of the other eight accused was an irrelevant ground, though. in the view we take, the ultimate conclusion is correct.

4. Now we shall consider whether the High Court was justified in reversing the verdict of acquittal recorded by the trial court. Briefly, the prosecution case is this:

On 3-9-1988, at about 9 a.m. when the deceased Mahadevappa, who went to the house of PW 8 at Kuknoor Village the previous day, was going back to his native Village Kumman Sirasgi, PW 4 a carpenter by profession, was also going to Kumman Sirasgi along with the deceased. When they came to the cart road near the land of Chand Patel (A-11) within the limits of Kumman Sirasgi, Accused A-6, A-9 and A-10 stopped Mahadevappa and thereafter A-I and A-3 attacked him with axe and A-2 and A-4 assaulted him with dagger and A-5, A-8 and A-12 instigated the other accused to kill Mahadevappa. A-6 tied the legs of the deceased with "dhoti". The accused fell down on the spot and succumbed to the injuries. The post-mortem revealed that there were injuries to the