IMPORTANT POINT
Once the accused persons are acquitted of the offence of rioting under sections 147 or 148 Indian Penal Code it is no longer possible to convict them under section 302 read with section 149, Indian Penal Code.

JUDGMENT

P. K. Mohanti, J. - The appellants along with seventeen others stood charged with the offence under section 148 Indian Penal Code for having formed themselves into an unlawful assembly with the common object of causing the death of one Rama Murty Choudhury. They stood further charged under section 302 read with section 149, Indian Penal Code for having caused the death of the said Rama Murty Choudhury in prosecution of their common object. Appellant No. 10 Ladu Das Appellant No. 11 Gangadhar Gouda and Appellant No. 12 Udaya Behara were alternatively charged under section 302 read with section 34 Indian Penal Code for having caused the death of the said Rama Murty Choudhury in furtherance of their common intention. Appellant No.6 Somanath alias Khadal Gouda, Appellant No. 11 Gangadhar, Gouda and Appellant No. 19 Jagannath Beheraj stood further charged under section 323, Indian Penal Code with having caused hurt to P.W. 4 Gajen Choudhury. After trial, the learned Sessions Judge acquitted all the accused persons of the charge under section 148, Indian Penal Code but convicted the appellants under section 302, read with section 149, Indian Penal Code and sentenced each of them to undergo imprisonment for life. He also convicted Appellant Nos. 6, 11 and 19 under section 323, Indian Penal Code and sentenced each of them to undergo R. I. for six months.

2. Prosecution case was that on 23.9.1975 morning while the deceased Rama Murty Choudhury was taking bath in a tank, locally known as Naliabandha the accused persons being armed with deadly weapons went there in a body and attacked him with lath is and other weapons. As a result of the assault the deceased fell down with bleeding injuries all over his body. His son (P. W. 4) and wife (P. W. 2) ran to his rescue but they were prevented by the accused persons. They however managed to remove the deceased to the verandah of one Igini Patra. But there also the accused persons committed further assault on the deceased as a result of which he died on the same day about 12-30 p.m. in Kural Dispensary where he had been admitted for treatment.

3. At the trial, the appellants denied the charge and contended that the case was falsely foisted against them.

4. The learned Sessions Judge relying mainly on the evidence of P. Ws. 2, 3 and 4 convicted the appellants as aforesaid. It is urged in this appeal that the order of conviction is contrary to law and against the weight of evidence on the record.

5. The main question that arises for consideration in this appeal is whether the appellants could be legally convicted under section 302/149, Indian Penal Code when they were acquitted of the charge under section 148, Indian Penal Code.

6. The charge under section 302/149, Indian Penal Code as framed by the learned Sessions Judge runs as follows:-

"That you on the same day, time and place were members of an unlawful assembly in prosecution of the common object of which some of the members of the said assembly caused the death of Rama Murthy Choudhry which offence you knew to be likely to be committed in prosecution of the common object of such assembly and you are thereby under section 149 of the Indian Penal Code guilty of causing death of Rama Murthy Choudhury an offence punishable under section 302, Indian Penal Code and thereby committed an offence punishable under the section of the Indian Penal Code and within my cognizance.

And I hereby direct that you be tried on the said charge."

7. The charge as reproduced above does not contain all the necessary ingredients to bring home to the accused persons the offence' of murder with the aid of section 149. No doubt, it says that the accused persons formed themselves into an unlawful assembly but does not specify the common object of unlawful assembly. The offence of rioting requires specified common object as described in section 141, Indian Penal Code. It is therefore, essential that the common object of the unlawful assembly should be specifie