GHANASHYAM HOMBRAM Vs. STATE OF ORISSA

JUDGEMENT

(1.) Appellants are four in number who stand convicted under Section 302/149 I.P.C. and under Section 148 I.P.C. Under the first count each of them has been sentenced to undergo R.I., for life and on the second count to undergo R.I. for one year. Both the sentences are directed to run concurrently.

(2.) Along with the four appellants, seven other persons were also placed on trial to face charges under Sections 148, 302/149 and 307/ 149 I.P.C. The learned Sessions Judge by the impugned order while acquitting those seven persons of the charges has found the appellants guilty and convicted them as indicated above.

(3.) Before going into the details of the case, we may state here that the conviction of the four appellants under Section 302 I.P.C. with the aid of Section 149 I.P.C. is not sustainable, inasmuch as, in order to constitute an unlawful assembly the number of its members must be five or more and in the instant case the learned Sessions Judge having acquitted the remaining 7 accused persons out of eleven, Section 149 I.P.C. is not available to be applied. There is nothing on record to suggest that the unlawful assembly consisted of the convicted persons and some unidentified persons who together were more than five. It is also not the case of the prosecution that along with eleven accused persons who were put on trial, some unidentified persons had also participated in the commission of the offence. In the charge framed against the accused persons it was clearly indicated that the named persons therein were members of an unlawful assembly and in prosecution of the common object of such assembly committed murder. The conviction of the appellants under Section 302 read with Section 149 I.P.C. is however alterable to one under Section 302 read with Section 34 I.P.C. It is true that no charge was framed under Section 302 read with Section 34, I.P.C., but the facts of the case are such, the appellants could have been also charged alternatively either under Section 302 read with Section 149 I.P.C. or under Section 302 read with Section 34 I.P.C. In the circumstances of the case, no prejudice is likely to be caused to the appellants if the conviction is altered to one under Section 302 read with Section 34 I.P.C. Their conviction under Section 148 I P.C. is however not sustainable for the reasons mentioned in the first part of the order.