( 1 ) THE following two questions have been refd. to us by a Bench for our decision : "1. An act is alleged to have been committed by and number of specified persons, five or more in number, in furtherance of the common intention of all of them. They are prosecuted for rioting and for the commission of the alleged act in view of the provisions of Section 149, Penal Code. The ct. acquits all except the applt. giving them the benefit of the doubt. At the same time its definite finding is that the applt. was associated with some at least of those acquitted persons in the commission of the alleged act. It accordingly convicts the applt. of the commission of the alleged act applying the provisions of Section 34, Penal Code. Can such conviction be upheld ? "2. Whether in such a case it is open to the appellate Ct. to find, there being no Govt. appeal against the acquittal of such acquitted persons, that, although it cannot interfere with such acquittal, each persons or some of them had been wrongly acquitted and had in fact taken part in the commission of the alleged act in assocn. with the applt. and on this ground hold that the applt. was rightly convicted ?"

( 2 ) THE