( 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 facts of the case so far as they are necessary for the purposes of this reference very briefly are that a serious riot took place in which one Bhoja lost his life and several persons received grievous and simple hurts. Fifteen persons were on their trial, some Under Section 147 and section 302 read with Section 149, I. P. C. and others Under Section 147 and Sections 323 and 324 read with Section 149, I. P. C. The learned Ses. J. however, acquitted all of them except one man gulab whom he convicted of an offence Under Section 302 read with Section 34, I. P. C. In doing so he came to the following finding : "there is no doubt that Gulab who had been named by all the prosecution witnesses was certainly one of the assailants. His name was mentioned on the first opportunity in the telegram given by Banwari soon after the assault. In my opinion, the prosecution witnessess evidence about the participation of Gulab accused in assaulting Bhoja must be believed. I find that Gulab was one of the assailants of Bhoja. "

( 3 ) THE learned Ses. J. gave the other applts. the benefit of doubt and observed as follows : "the result is that it has not been possible for the prosecution to conclusively prove who were the other associates of Gulab, but there is no doubt that there were such associates since Gulab had only a sword and there were only two injuries on the person of the deceased which could have been caused by such a weapon and which were not mainly responsible for his death. The wounds with the sword were not sufficient to cause by themselves his death, which was caused by multiple injuries inflicted on him by Gulab and others. The question, therefore, is what offence has been committed by Gulab. He cannot be said to have committed an offence Under Section 302, I. P. C. alone since the injuries caused by him were not in themselves sufficient to cause the death of Bhoja, but if it is proved that he was a member of an unlawful assembly the common object of which was to beat Bhoja and Bhoja was killed by the unlawful assembly or any member thereof in prosecution of that common object, Gulab is certainly guilty of an offence Under Section 302, I. P. C. read with Section 149, I. P. C. However it has not been possible for me to come to a definite conclusion that the other associates of Gulab were at least four in number. In the absence of such evidence it cannot be said that there was an unlawful assembly and Gulab was a member thereof. "

( 4 ) FOR the conviction of. Gulab, however, the learned Ses. J. came to the following conclusion ; "in my opinion, therefore, the death of Bhoja was due to his beating by Gulab and his confederates who had a common intention to cause his death or to cause such "bodily injuries to him as were likely to cause his death, He is, theref