Legality for awarding conviction.

We do not think that the material on record justifies the conviction of the appellants. The trial Court, i.e., the Court of Sessions, Belgaum, inSessions Case No. 141 of 1959, convicted both the appellants under section 302 read with section 149, Indian Penal Code and sentenced each one of them to suffer imprisonment for life. It also convicted them under section 148, Indian Penal Code and for that offence sentenced each one of them to suffer 18 months rigorous unprisonment. In that Court there were as many as 5 accused; all of them were charged under section 302 read with section 149 as well as under section 148, Indian Penal Code. But A-3 to A-5 were acquitted on the ground that their presence at the time of the occurrence was not satisfactorily established. Curiously enough, the learned Sessions Judge thought that in spite of the acquittal of those accused, he could still convict the appellants under section 302 read with section 149 as well as under section 148, Indian Penal Code, as in his view, for which there is no basis, five persons took part in the attack on the deceased.

The prosecution case is that the deceased Tirthappa was in terms of illicit intimacy with Dyamawwa, wife of the first accused; therefore, the appellants who are cousins, along with their friends, the acquitted accused, formed themselves into an unlawful assembly and in prosecution of the common object of that assembly, the members of that assembly hacked the deceased to death on the morning of 30th September, 1959, in front of the house of P.W. 7, Chandrawwa, the sister of the deceased.

There is no doubt that the deceased was hacked to death at the time and place mentioned in the charge. He had sustained as many as 13 injuries of which 12 were incised; his neck was almost severed.

We have not thought it necessary to go into the question of motive as, in our opinion, the evidence relating to the occurrence is unreliable.

But, before examining that evidence, we shall first consider the legality of the conviction of the appellants under section 148 and under section 302 read with section 149, Indian Penal Code. As mentioned earlier, the Court below came to the conclusion that it was not proved that A-3 to A-5 were members of the alleged assembly. The charge framed against the accused clearly mentioned that the 5 persons named therein were members of the unlawful assembly. It was not the prosecution case that any other persons known or unknown were also members of that unlawful assembly. If three out of the five members of that unlawful assembly were acquitted on the ground that it was not proved that they were members of that unlawful assembly, then the Court could not have convicted the remaining two under section 148, Indian Penal Code or for any other offence, by taking the aid of section 149, Indian Penal Code. Cases where it is proved that an unlawful assembly consisted of more than five members but some of them were not identified must be distinguished from those where the Court is doubtful about the presence of some of the persons mentioned as members of an unlawful assembly and if they are excluded from consideration the remaining members are not five or more. In the former case, the existence of an unlawful assembly is established though some of its members are not identified. But in the latter case the existence of an unlawful assembly itself becomes doubtful. The case of the prosecution was that five accused in the Court below were the members of an unlawful assembly. It was not said that it also consisted of some unknown persons. Nor was it alleged that any one or more of the members of that assembly could not be identified. The Court below did not believe that three out of the five accused tried before it were members of that group, which amounts to a finding that the existence of the alleged unlawful assembly is itself doubtful. Hence, there was no occasion for the application of either section 148 or 149, Indian Penal Code. See Bh