Judgment

DUA, J.: This appeal by special leave is directed against the judgment of the Patna High Court dated February 16, 1968 in Criminal Appeal No. 384 of 1966. Fourteen persons were tried in the court of the Second Additional Sessions Judge, Chapra, under Ss. 307, 148 and 147, I.P.C. Out of them two were convicted under sections 307 and 148, I.P.C, and four under S. 147, I.P.C. The rest were acquitted. The six convicted persons appealed to the High Court but except for the reduction of the sentence imposed under S. 307, I. P.C. their appeal was otherwise dismissed. All the six convicted persons applied for special leave to this Court. On May 21, 1968, however, an application was presented in this Court on behalf of the petitioners seeking permission to amend the special leave application by raising the following two additional grounds:

"(1) that the trial court disbelieved the prosecution case that any lathi blows were given by the petitioners 3 to 6 erred in convicting them under section 147 of the Penal Code in the absence of any finding of any overt act on the part of those persons.

(2) that Ext. AA could only be admitted in evidence as a previous statement, of Ganesh Bhagat, P. W. 2 and used for the purpose of corroboration or for contradiction but not as a substantive piece of evidence. Both the courts below have erred in convicting petitioners 3 to 6 under section 147 of the Penal Code merely because their names were in Ex. AA." On May 22, 1968 this Court declined special leave to petitioners 1 and 2 and granted it only to petitioners 3 to 6, but in their case also leave was limited only to the two additional grounds mentioned above. This appeal is accordingly confined to only those two grounds. The names of the four appellants with whose case we are now concerned are;

1. Bishambher Bhagat.

2. Raghunath Bhagat.

3. Ghuguli Bhagat and

4. Jamuna Bhagat.

According to the prosecution case there was longstanding enmity between Ganesh Bhagat (P. W. 2) on the one side and the accused in the trial court on the other. This enmity had given rise to several criminal cases between the parties, including proceedings under S. 107, Cr P.C. Some of those cases were pending on the date of the occurrence in question in this appeal. On November 22, 1965 between 10 and 11 a. m. Ganesh (P.W. 2) was surrounded by about 18 persons including the 14 persons accused in the trial court when he was proceeding to his house by a village path towards the north of his residence after leaving a bundle of paddy at the house of one Palta. Before he reached his house, on a direction by Bishamber Bhagat (one of the appellants in this Court) and Nandkumar Bhagat (acquitted by the trial court), their companions assaulted Ganesh. Ram Briksh Bhagat and Ramkishan Bhagat (to whom special leave was declined by this court) were armed with bhalas with which Ganesh was assaulted by them. The others were armed with lathis.

2. The trial court, while dealing with the case under S. 147, I. P. C. upheld the prosecution version only to the extent it was supported by the earliest statement of Ganesh recorded on November 22, 1965, as his dying declaration, by P. N. Roy Circle Officer, who was examined as court witness no. 1. Point No. 4 which was formulated by the trial court on this part of the case reads:

"Whether it has been established that the rest of the accused persons were members of the unlawful assembly on that date, armed with lathis the common object of which was to assault Ganesh?"

The court recorded its finding on this point in these words:

"15. Point No. 4: According to the prosecution case all these accused persons were members of an unlawful assembly and except Rambriksh and Rambishun, all were charged under S. 147, I. P. C. for being armed with lathi. But the perusal of the earliest statement made by the informant himself and duly recorded by the C. O. C. W. 1 goes to show that only the following names had been mentioned therein Rambishun (2) Rambriksh (3) Bishambh