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 D