IMPORTANT POINTS
(1) Non applicability of section 149 of Indian Penal Code is no bar in convicting an accused if evidence discloses commission of offence in furtherance of common intention 0/ accused persons.
(2) Where four out of seven accused were acquitted remaining three cannot be convicted applying section 149 of Indian Penal Code.

JUDGMENT

Kuldip Singh, J. - Nethala Pothuraju, Nethala Dhananjaya, Nethala Remudu and four others (hereinafter referred to as 'A-1 to A-7') were tried for the offence under Sections 147, 148, 323, 379 and 302 read with Section 149 I.P.C. on the allegations that they caused the death of Madda Lakshamandas of village Ramaraogudem on November 1,1980, near the Tobacco Garden of A-1. The Trial court acquitted A-7 of all the charges, A-1 to A-6 were, however, found guilty for the offences punishable under Sections 148 and 302 read with section 149 I.P.C. They were sentenced to imprisonment for life. On appeal, the High court confirmed the conviction and sentence of A-1 to A-3. The conviction and sentence of A-4 to A-6 was set aside by the High Court and they were acquitted on the following reasoning:

"We feel that it would be safe to accept the evidence of P.Ws. 1 and 2 to the extent it is corroborated by the evidence of P.W. 3 in so far as the presence and participation of the accused in the attack on the deceased is concerned. Accepting the evidence of P.W. 3, we hold that the identity of A-1 to A-3 in the unlawful assembly consisting of A-1 to A-3 and some other unidentified persons is satisfactorily established. The manner in which the attack was made on the deceased can only lead to one inference, namely, that the common object of the unlawful assembly was to kill the deceased. We, accordingly, confirm the conviction and sentence of A-1 to A-3 under Sections 148 and 302 read with 149 I.P.C. We set aside the conviction and sentence of A-4 to A-6 under Sections 148 and 302 read with 149 I.P.C. and acquit them."

This Court granted leave to appeal on the limited question of applicability of Section 149 I.P.C.

2. The learned counsel for the appellants has contended that after the acquittal of four accused persons by the courts below the conviction of the appellants under Sections 148 and on applying 149 I.P.C. cannot be sustained. It is argued that the appellants, being three in number, could not have formed an. unlawful assembly within the definition of Section 141 I.P.C.

3. In our view, there is force in the contention of the learned counsel for the appellants. The appellants being only three in number, there was no question of their forming an unlawful assembly within the meaning of Section 141 I.P.C. It is not the prosecution case that apart from the seven accused persons there were some other unidentified persons who were involved in the crime. The High Court clearly fell into error in confirming the conviction and sentence of the appellants under Section 148 and on applying 149 I.P.C. on the ground that they formed an unlawful assembly alongwith some unidentified persons. The prosecution case from the very beginning was that A1 to A 7, the named persons, formed the unlawful assembly. A-4 to A-7 having been acquitted, the remaining three appellants cannot be convicted under Section 148 and on applying 149 I.P.C. We, therefore, set aside the conviction of the appellants under the said sections.

4. The question still remains as to whether the appellants can be convicted under Section 302 read with Section 34 I.P.C. Both Sections 149 and 34 I.P.C. deal with a combination of persons who become liable to be punished as sharers in the commission of offence. The non-applicability of Section 149 I.P.C. is, therefore, no bar in convicting the appellants under Section 302 read with section 34 I.P.C., if the evidence discloses commission of an offence in furtherance of the common intention of them all. PW-1, the wife of the deceased, PW-2, the daughter of the deceased and PW -3, an adjoining land-owner, are the three eye-witnesses to the occurrence. It is in evidence that the complainant and the accused belonged to opposite factions and there was long standing enmity between the parties. During the last 30 years, there had been murders and rioting between the two factions. The deceased Madda Lakshamandas was under going life imprisonment