RAM BAHADUR SINGH Vs. STATE

JUDGEMENT

(1.) KUNDAN Singh, J. This revision has been directed against the judgment and order dated 13-7-84 of the Sessions Judge, Azamgarh, allowing the Criminal Appeal No. 165 of 1983 and setting aside the convic tion and sentence under Section 147 I. P. C. and confirming the conviction under Sec tion 323/149, I. P. C. modifying the sentence to a fine of Rs. 500 each and in default of payment of fine, each of the applicants was directed to undergo simple imprisonment of one month.

(2.) THE applicants were convicted by the Judicial Magistrate under Sections 147 and 323/149, I. P. C. and sentenced each of the applicants to a fine of Rs. 500 each, under Section 147, I. P. C. In default of payment of fine, each of the accused was directed to undergo one month's simple imprisonment, while each of the applicants was sentenced to one year's R. I. under Sections 323/149 I. P. C. by judgment and order dated 30-9-1983 in Criminal Case No. 1038 of 1983.

(3.) THE learned counsel for the aplicants further relied on the case Mahadev sharma and others v. State of Bihar, AIR 1966 SC 302, wherein it has been held that the prosecution has proved the existence of an unlawful assembly, its common object which was murder of Misari and the mem bership of each of the appellants. Of course, if a charge had been framed under Section 147 or 148 and that charge had failed against any of the accused then Section 149 could not have been used against him.