- (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. Being aggrieved, the applicants preferred appeal before the learned Ses sions Judge against their conviction and sentence awarded by the learned Magistrate. The learned Sessions Judge al lowed the appeal in part, set aside the con viction and sentence under Section 147 I. P. C. and maintained the conviction under Sections 323/149 I. P. C. modifying the sen tence of imprisonment to a fine of Rs. 500 each. In default of payment of amount of fine, each of the applicants was directed to undergo simple imprisonment for one month. The learned counsel for the ap plicants raised a legal argument and sub mitted that the applicants were charged under Section 147 I. P. C. also. That charge failed and the applicants were acquitted from that charge under Section 147 I. P. C. by the Additional Sessions Judge. As such the applicants cannot be convicted with the aid of Section 149 under Section 323 I. P. C. He relied on a decision of the case Maheshwar Gouda and others v. State oforissa, 1983 Crl. L. J. 1029, wherein it has been held that Section 149 postulates an assembly of five or more persons, having a common object as specified in Section 141 and then the com mission of an offence by one of the members in prosecution of that object. Thus the in gredients of Section 147 or Section 148 are implied when a charge under Section 149 is framed. But if a specific charge under Sec tion 147 or Section 148 has been framed and that charge has failed against the accused persons Section 149 cannot be used against them.
(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. I have given my anxious thought to the submission made on behalf of the ap plicants. It has to be seen whether the ac quittal or the finding recorded for setting aside the conviction and sentence under Section 147was justified. In the present case the learned Sessions Judge has observed in paragraph No. 10 of his judgment that he was in the agreement of the submission that Marpeet took place at such place where both the parties were present and it could not be said that they had not come after preparation. No such weapon was used for which the accused persons would have made preparation. Lathi and danda are available at every place in the rural area. There was no need to make preparation to that effect. As such prosecution was not able to prove the charge under Section 147 I. P. C. It appears that the learned Sessions Judge travelled on his imagination and surmises. He has to go through the evidence and record the finding as to whether any of the accused persons was holding lathi or used lathi in the incident. The finding recorded by the learned Ses sions Judge is based on surmises and conjec tures which was not sustainable and it could have been set aside in case the Government would have filed the appeal against that finding. In case the Court erroneously dis charges any person from a charge under Section 147 or 148 I. P. C. and that erroneous order would not exonerate the accused per sons from the charge under Section 323 read with Section 149 I. P. C. wherein his par ticipation has been proved beyond reasonable doubt.;