Kuldip Singh, J. - (1.) Nethala Pothuraju, Nethala Dhananjaya, Nethala Remudu and four others (hereinafter referred to as 'A- 1 to A-7) were tried for the offences under Sections 147, 148, 323, 379 and 302 read with Section 149 1. P. C. on the allegations that they caused the death of Madda Lakshamandas of village Ramaraogudem on November 1, 1980 near the Tobacco garden of A-1. The Trial Court acquitted A-7 of all the charges, A-1 to A-6 were, however, found guilty for the offences punishable under Sections 148 and 302 read with Section 149, IPC. They were sentenced to imprisonment for life. On appeal, the High Court confirmed the conviction and Sentence of A-1 to A-3. The conviction and sentence of A-4 to A-6 was set aside by the High Court and they were acquitted on the following reasoning:"......... We feel that it would be safe to accept the evidence of P. Ws. 1 and 2 to the extent it is corroborated by the evidence of P.W.3 in so far as the presence and participation of the accused, in the attack on the deceased is concerned. Accepting the evidence of P.W.3 we hold that the identity of A- 1 to A-3 in the unlawful assembly consisting of A-1 to A-3 and some other unidentified persons is satisfactorily established. The manner in which the attack was made on the deceased can only lead to one inference namely that the common object of the unlawful assembly was to kill the deceased. We accordingly confirm the conviction and sentence of A-1 to A-3 under Sections 148 and 302 read With 149 I.P.C. We set aside the conviction and sentence of A-4 to A-6 under Sections 148 and 302 read with 149 I.P.C. and acquit them."
(2.) This Court granted leave to appeal on the limited question of applicability of Section 149, I.P.C.
(3.) The learned counsel for the appellants has contended that after the acquittal of four accused persons by the courts below the conviction of the appellants under Section 148 and on applying S. 149, I.P.C. cannot be sustained. It is argued that the appellants, being three in number, could not have formed an unlawful assembly within the definition of Section 141, I.P.C.;