# ) - ' KOMMA NEELAKANTHA REDDY & ORS v. ST A TE OF ANDHRA PRADESH

- **Citation:** [1978] 3 S.C.R. 75
- **Court:** Supreme Court of India
- **Decided:** 1978-02-16
- **Bench:** S. Murtaza Fazal Ali, P. N. Shjnghal
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/komma-neelakantha-reddy-ors-v-st-a-te-of-andhra-pradesh-7425
- **Pages:** 7

## Headnote

75
Eye witness-Reliability of witness-Eye witnesses who
lyere
Poli~e-nien
:Jpecially posted due to strained relations between the two facflons, niak1ng the
F.l.R. Ex. P 2 -v.·hen the party of the deceased refused to tnake a report, but
making a slate1ne11t in a departn1e11tal enquiry against then1 for dereliction of
d111y, that they arri1·ed at the place of incident after e1'erythi11J.{ wa.)· 01·er.
Penal Code (Act 45 of 1860), 1860 Sections 141, 149, 151-Scope of.
Twenty five persons were charged with offences under variou5 sections of
-1.P.C. on the basis of first information report No. Ex. P 2 filed by P\Vs. 1. an:d
2. PWs. 1, 2 and 3, the· eye witnesses, were members· of Poiice Party specially
posted at the place of incident due to the strained relations bet\N·een th_e party
·of the accused and the party of the· deceased. The F.I.R. was drawn up and
filed by them as the party of the deceased refused to make a report. The first
information report stated, (a) that the party of the deceased went upto the
terrace of the house of SL1bbi Reddy and challenged the party of the accused
·to a fight, \\'hereupon the party of the accused came to the terrace of the house
·of one Somi Reddy which \Vas at son1e distance from the house. of Subbi Reddy,
(b) that A2, A4, A6 and A9 v.rere armed with guns and as a result of their
firing at the party of the deceased several persons received gun.shot injuries of
whom R:1makrishna Reddy succumbed to his. injury and (c) that the policen1en
tried to apprehend the accused but they ran away.
The Additional Sessions
Judge, Cuddapah. who did not find it possible to place reliance on the evidence
of the prosecution witnesses, acquitted the accused by his judgment dt. April 21,
197 l. 1\n ap-peal was filed against the acquittal. Al and A2 died during the
appeal. The High Court relied on the testimony of PWs. 1 to 3 set aside the
judgment in respect of the acquittnl of A 3 to A 9, A 11, A 12, A 13 and
A 19 but confirmed the acquittal of the rest.
Hence this appeal.
It \Vas contended that in view of the contrary staten1ents made by PVVs. 1 to 3 in the
<lepartmental enquiry against them for dereliction of duty, they falsely claimed
10 be the eye \\'itnesses and therefore the conviction\ could not be sustained.
Dismissing thr appeals of A 4, A 6, A 9 and allowing the appeals of the
Test the Court,
HELD : 1. The High Court rightly took the view I hat '111 the three· policemen
were present at the time of the incident and v.'itnessed it, and that the statements
given by them in the departmental inquiry against them for d>!rcliction of duty
v.1ere for the purpose of avoiding an adverse finding in the inquiry.
One tell.tale
fact which was taken into consideration was the· injury received by PW 3 v-.1hen
both sides were throwing stones ~1t each other.
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2. The High Court did not misread the evidence inasmuch as it has taken
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note of the fact that PW 1 \vas a local constable who was stationed in village
Kasanur not only for the occnsion which led to the pre.'ient incident. but also
Cn earlier occasions including service of summonses, and therefore had opportunity of knowing the nan1es of the accused. It was therefore rightly held that
A. 2. A 4. A 6 and A 9 had fired their guns resulting in the death of Ramakrishna
Reddy and injuries to several prosecution witnesses.
f78D. E, H]
3. Section 149 I.P.C. provides that if an offence is committed by any memh"'r H
of an unlnwful assembly in prosecution of the common object uf that assembly or
~nch as the members of that nssembly kne\V to be· likely to be committed in
prosecution of that object, every person who, at the time· of the committing of
·that offence, is a member of the same assembly, is guilty of that offence.
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SUPREME COURT REPORTS
[1978] 3 s.c.R.
A
"Unlawful assembly" has been definded in section 141 I.P.C., while s. 142 states
who can be said to be· its member. An unlawful assembly is thus an assembly
of five or more persons if the comm

## Text

)
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'
KOMMA NEELAKANTHA REDDY & ORS.
v.
ST A TE OF ANDHRA PRADESH
February 16, 1978
[S. MURTAZA FAZAL ALI AND P. N. SHJNGHAL, JJ.]
75
Eye witness-Reliability of witness-Eye witnesses who
lyere
Poli~e-nien
:Jpecially posted due to strained relations between the two facflons, niak1ng the
F.l.R. Ex. P 2 -v.·hen the party of the deceased refused to tnake a report, but
making a slate1ne11t in a departn1e11tal enquiry against then1 for dereliction of
d111y, that they arri1·ed at the place of incident after e1'erythi11J.{ wa.)· 01·er.
Penal Code (Act 45 of 1860), 1860 Sections 141, 149, 151-Scope of.
Twenty five persons were charged with offences under variou5 sections of
-1.P.C. on the basis of first information report No. Ex. P 2 filed by P\Vs. 1. an:d
2. PWs. 1, 2 and 3, the· eye witnesses, were members· of Poiice Party specially
posted at the place of incident due to the strained relations bet\N·een th_e party
·of the accused and the party of the· deceased. The F.I.R. was drawn up and
filed by them as the party of the deceased refused to make a report. The first
information report stated, (a) that the party of the deceased went upto the
terrace of the house of SL1bbi Reddy and challenged the party of the accused
·to a fight, \\'hereupon the party of the accused came to the terrace of the house
·of one Somi Reddy which \Vas at son1e distance from the house. of Subbi Reddy,
(b) that A2, A4, A6 and A9 v.rere armed with guns and as a result of their
firing at the party of the deceased several persons received gun.shot injuries of
whom R:1makrishna Reddy succumbed to his. injury and (c) that the policen1en
tried to apprehend the accused but they ran away.
The Additional Sessions
Judge, Cuddapah. who did not find it possible to place reliance on the evidence
of the prosecution witnesses, acquitted the accused by his judgment dt. April 21,
197 l. 1\n ap-peal was filed against the acquittal. Al and A2 died during the
appeal. The High Court relied on the testimony of PWs. 1 to 3 set aside the
judgment in respect of the acquittnl of A 3 to A 9, A 11, A 12, A 13 and
A 19 but confirmed the acquittal of the rest.
Hence this appeal.
It \Vas contended that in view of the contrary staten1ents made by PVVs. 1 to 3 in the
<lepartmental enquiry against them for dereliction of duty, they falsely claimed
10 be the eye \\'itnesses and therefore the conviction\ could not be sustained.
Dismissing thr appeals of A 4, A 6, A 9 and allowing the appeals of the
Test the Court,
HELD : 1. The High Court rightly took the view I hat '111 the three· policemen
were present at the time of the incident and v.'itnessed it, and that the statements
given by them in the departmental inquiry against them for d>!rcliction of duty
v.1ere for the purpose of avoiding an adverse finding in the inquiry.
One tell.tale
fact which was taken into consideration was the· injury received by PW 3 v-.1hen
both sides were throwing stones ~1t each other.
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2. The High Court did not misread the evidence inasmuch as it has taken
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note of the fact that PW 1 \vas a local constable who was stationed in village
Kasanur not only for the occnsion which led to the pre.'ient incident. but also
Cn earlier occasions including service of summonses, and therefore had opportunity of knowing the nan1es of the accused. It was therefore rightly held that
A. 2. A 4. A 6 and A 9 had fired their guns resulting in the death of Ramakrishna
Reddy and injuries to several prosecution witnesses.
f78D. E, H]
3. Section 149 I.P.C. provides that if an offence is committed by any memh"'r H
of an unlnwful assembly in prosecution of the common object uf that assembly or
~nch as the members of that nssembly kne\V to be· likely to be committed in
prosecution of that object, every person who, at the time· of the committing of
·that offence, is a member of the same assembly, is guilty of that offence.
76
SUPREME COURT REPORTS
[1978] 3 s.c.R.
A
"Unlawful assembly" has been definded in section 141 I.P.C., while s. 142 states
who can be said to be· its member. An unlawful assembly is thus an assembly
of five or more persons if the common object of the persons composing it is
of the nature specified in items first to fifth of th~ section. It cannot be urged
that any item other than that part of the third item which relates to "other
offence" could possibly be attracted to the present case.
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(b) An offence will fall within the purview of s. 149 I.P.C. even if the members of the assembly knew that it was "likely to be committed" in prosecution
of their common object or if the offence was such as the members of that
assembly knew to be likely to be committed in prosecution of that object. There
is nothing in the statements of the three police witnesses to prove that this was
so.
Section 149 I.P.C. will not therefore fasten criminal liability on the other
accused.
[80G·H]
( c) From the evidence of PWs. 1 to 3 it is not possible to reach the conclusion that the other accused (other than A 2, A 4, A 6, A 9) were armed with
spears or that they went u:P the 1terrace with the common object of committing
any offence. On the other band the statements of PWs. 4 and 6 showed that
the party of the
accused~ did not go to their
~errace of their own
accord for committing any offence.
A 2,
A 4,
1\ 6
and
A 9
were armed with guns and fired them some· time thereafter, but there was nothing
in the evidence of PWs. 1 to 3 to show that they did so in pursuance Of the
common object of the other persons who were on the terrace at that time.
Under the explanation to S. 141 an assembly which was not unlawful when
assembled may subsequently become an unlawful asse,mbly, but there was nothing
in the evidence of the three police witnesses to show that this was so or that
tho other accused exhorted those who fired the guns or knew that the gun would
be fired.
There ..-vas also nothing to show thait the other accused knew that the
guns V>'ere likely to be fired in prosecution of their common object. [80A, E-F]
4. Section 151 ·would be attracted only if there was evidence to show that
the assembly had been "la\vfully commanded to dispense".
There is nothing
in the, statement of the three police witnesses to show that they gave any such
comm.wd.
They have merely stated that they warned. the two factions who
were pelting stones, and none of them has stated that any command for dispersal
was given by any of them. The High Court therefore erred in invoking sec. 151
l.P.C. for the purpose of convicting the other accused with the aid of section 149
l.P.C.
[SIA-BJ -
CRIMINAL APPELLATE JURISDICT.ION : Criminal Appeal No. 224
of 1973.
(From the Judgment and Order dated 3-8-1973 of the Andhra
Pradesh High Court in Crl. A. No. 561 of 1971.)
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P. Basi Reddy, and A. V. V. Nair, for the appellants.
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P. Parmeswara Rao, and T. V. Narasimhachari, for the respondent.
The Judgment of the Court was delivered by
SmNGHAL J., This appeal by the accused is directed against the
judgment of the High Court of Andhra Pradesh dafed August 3,
1973, by which their acquittal has been set aside and they have been
convicted and sentenced for the commission of various offences. Both
the courts have referred to the accused and the prosecution witnesses
with reference to their serial numbers, and as arguments before us
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K. N. REDDY v. ANDHRA PRADESH (Shinghal, J.)
77
have also been advanced with reference to those nwnbers, it will be
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convenient to adhere to that method of describing them.
The incident which bas given rise to this appeal relates to village
Kasanur, within the jurisdiction of Sinihadripuram police station in
Pulivcndla ta!uk of Cuddapah district.
It is alleged that there was
long standing enmity between the group _of the accused led by A-1,
and the group of the prosecution witnesses led by Harishchandra
Reddy.
The High Court bas mentioned the cause of the enmity and
the disputes which preceded the present incident. It is alleged that
on the morning of January 11, 1 970, deceased Ramkrishna Reddy
and P.\V. 16 went to Simhadripuram to make some purchases and
were beaten up by A-6, and A-21. They returned to Kafanur some
time thereafter. At about 4 p.m. while P.Ws. 6, 7, 8, 9, 10, 11, 12
and 13 were standing at the house of Subbi Reddy, the deceased went
there and reported that incident. P.W. 5 also came running there and
intimated that he had been chased by the members of the other party
who were armed with spears and guns.
All of them then went up
the terrace of the house of Subbi Reddy and challenged the other
party (i.e. the party of the accused) to a fight. The accused came
to the terrace of the house of one Sarni Reddy which was at some
distance from the house of Subbi Reddy. A-2, A-4, A-6 and A-9
were armed with guns and the other accused were armed with spears.
Both sides indulged in throwing stones at each other. It so happened
that in those days a police party had been stationed in the village because of the strained relations between the two factions. P.Ws. 1, 2
and 3 were members of the police party. They had received intimation from P-W. 21, who was the village Munsif; about the likelihood
of a breach of the peace and dispatched report Ex, P.l to police
station Simhadripuram for obtaining reinforcement. In the mean time,
the three policemen reached the place of the incident and found the
two parties on the terraces of the two houses. The policemen warned both the sides, but to no effect and it is said that they saw the two
factions hurling stones at each other. It is further alleged that A-2,
A-4, A-6 and A-9, who were armed with guns, fired at the party of
Harishchandra Reddy on the terrace of Subbi
Reddy. Ramkrislina
Reddy received gun shot injuries and died.
Several other perfons
belonging to his party received gun shot injuries.
The policemen
tried to apprehend the accused, but tb~y ran away. The party of the
deceased was asked to make a report but as they were not willing to
do so, report Ex. P.2 was drawn np by P.Ws. I and 2 and was sent
to the police station. · A case was registered and investigation was
commenced by P.W. 30.
The dead body of Ramkrishna Reddy was
sent for post-mortem examination, and so also the irijured persons.
The case was. ultimately tried by Additional Sessions Judge, Cuddap-ah,
who did not find it possible to place reliance on the evidence of the
prosecution witnesses and acquitted the accused by his judgment dafed
April 21, 1971.
An appeal was filed against the acquittal.
Appellants A-1, and A-2 died thereafter.
As has been stated, the High
Court has set aside that judgment in respect of the acquittal of A-3,
to A-9, A-11, A-12, A-13 and A-19, but bas confirmed the acq11ittaI
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SUPREME COURT REPORTS
[1978] 3 S.C.Rof the remammg accused.
This is how those who have been convicted have come up in appeal to this Court.
As has been stated, P.Ws. I to 3 are the policemen.
The first
two o! them were responsible of the lodging of the first information
report Ex-P.2 within an hour of the incident. P.W. I was 1 constable
blonging to the police station and was familiar with the names of
the accused. P.W. 2 was the 'naik' of the armed police, and P.W. 3
belonged to his force.
The High Court has relied heavily on the
testimony of these witnesses and the question is whether ;t has committed any error of law in doing so, or has misread the evidence in
any respect.
It has been strenuously argued by Mr. Basi Reddy on behalf of
the appellants that policemen arrived at the place of the incident after
everything was over and have falsely claimed that they witnessed the
incident. In support of his argument counsel has placed considerable
reliance on the statements of these witnesses in the departmental mquiry against them for dereliction of duty, and has also urged that
these witnesses could not possibly have been familiar. with the mimes.
of the accused.
We have examined both these arguments.
The High Court has
taken note- of the fact that P.W. 1 was a local constable who was
stationed in village Kasanur not only for the occasion which led to
the present incident, but also on earlier occasions induding service
of summonses.
He had therefore opportunities of knowing
th~
accused by name, ant;! it cannot be said that the High Court misread
the eYidence in taking that view.
The High Court has also exaniined
the earlier statements of the witnesses in the departmental inquiry and
has taken the view that those statements were given for the purpose
of avoiding an adverse finding in the inquiry. lt has also given adequate reasons for holding that they were present at the time of the
incident and were reliable witnesses.
One "tell-tale" fact which ilasc
been taken into consideration in this respect is the injury which was;
received by P.W. 3 when both sides were throwing stones at each
other.
P.W. 17, who was the medical officer, attached to the government hospital at Pulivendla, examined the injury, and· the High
Court was justifi"d in taking the view that it was inflicted at the
time of the incident.
So when there was satisfactory evide-nce to
prove the presence of P.W. 3 at the time of the incident, it was orily
natural that P.W. 2, who was his 'naik', should also have been present there.
As P.W. 1 was familiar with the area and was a member
of the police party, the High Court rightly took the view thaf aTl three
of them were present at the time of the incident and wit1iessed it.
The High Court has made a reference to the other evidence bearing
on its finding to that effect, and we find no reason to disagree with
its view that the policemen witnessed the incident and were reliable
in what they have stated.
A-2, A-4, A-6 and A-9 fired their gu.ns
resulting in the death of Ramkrishna Reddy and the injuries ou
several prosecution witnesses.
Of these A-2 has died, and no oth~r
argument worth the name has been made for
interfering with the
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K. N. REDDY v. ANDHRA PRADESH (Shinghal, !.)
79
order of their conviction and the sentences imposed on them by the
High Court.
Their convictio" ~nd the sentences arc therefore upheld.
The question however remains whether the other appellants have
rightly been convicted of offences under sections 302, 326 and 324
with the aid of section 149 I.P.C. The High Court has made a refeA
rence to section 151 1.P.C. and has taken the view that they wcr~
B
members of an unlawful assembly as they continued in it ofter it
had been lawfully commanded by the policemen to disperse.
Section J 4'J l.P.C. provides that if an offence is committed by any
member of an unlawful assembly in prosecution of the common o-bject of that assembly, or such as the members of that assembly knew
to be likely to be committed in
prosecution of
that object, every
person who, at the time of the committing of that offence, is a member oE the same assembly,
is
guilty of Jhat offence.
"U nfawful
assembly"' has been defined in section 141 I.P.C., while section 142
states who can be said to be its member.
An unlawful assembly is
thus an assembly of Jive or more persons if the common object of the
pernons composing it is of the nature specified in items first to fifth
of the section. It cannot be urged, for purposes of this case, Uiat
any item other than that part of the third item which relates to "otncr
cllcnce' could possibly be attracted to the present case. It has the-reforc to be examined whether it has been established by the prosecution that the common object of the accused was
to
commit any
offence.
We have gone through the evidence of P.Ws. 1, 2 and 3 on which
reliance has been placed by the High
Court. It will
be
recalled
that P.W. 1 was familiar with the factions in the village.
The relevant part of his testimony is that he found about 3ff persons of the
party of A-1 on the terrace of Rcddygari
Ramireddy's
ho,Jse, that
A-2, A-4, A:6 and A-9 were in that party and were armed with grn1S
while the others were armed with spears.
1'.he fact that those four
accused who fired their guns has been stated in the first information
report but it does not mention that the other accused were armed
with spears.
The witness has further stated that the party of
Harishchandrn Reddy was on the
terrace. of the
house
of Subbi
Reddy and that both the parties were pelting stones at each other. He
claims that the policemen warned both the parties, and when they
moved to the house of Bayapureddy, A-2, A-4, A-6 and A-9 sl1ot
guns in the direction of Subbi Reddy's house.
Now apart from tbe
fact that there is no mention in the first information report that the
other accused were armed with spears, we find that no spear injury
was found on the members of the other party. In fact t11e ~ceused
could possibly have 110 advantage ;11 arming themselves wi!h spears
as they were at such considerable distance from the other party that
e~en the stones. did not hit anyone in that gathering.
P.W. 1 bas
signed the first mformahon report (Ex-P. 2), and it shows that the
party of the accused went npto the terrace "suddenly".
Thus after
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80
SUPREME COURT REPORTS
[1978] 3 S.C.R.
examining the entire statement of P.W. 1 we find that it is not
possible to reach the conclusion that the other accused were armed
with spears, or that they went up the terrace with the common object
of committing any offence.
P.W. 2 was the 'naik' of the Armed
Reserve Police Force, while P.W. 3 was a constable.
We have gone
through their statements ~!so and the- same is the position in regard
to them.
The High Court has not found it possible to place relian..:e 0n the
\·ersion of the other prosecution witnesses that all the 25 accused
named by them participated in the crime.
Reasons for that view
have been mentioned in the judgment.
Those witnesses were members of the opposite faction, and their testimony has to be examined
carefully.
The statenients of those witnesses are quite similar, and
it will be sufficient to refer to the statement of P.W. 4 who has
deposed about the strained relations leading upto the last incident
and has given all the details about it. He has stated that while they
were sitting in the verandah of the house of Subbi Reddy at 2bout
4 p.m. on the day of the incident, the deceased came and told them
that he and Anjaneyulureddi were beaten· j:Jy
A-6 and
others in
Simhadripuram and that P.W. 5 also came running and >tated that
he was chased by the people of the party of A-1.
The witness has
further stated that all of them then went up the terrancc of Subbi
Reddy's house and that he
and Rangareddigari
Viswanathareddy
"called the people of the party of A-I" after going to the top of th~
house and the accused also came to the terrace of the house
Of
Reddigari Ramireddy and Somireddy P.W. 5 has
stated that "then
P. W. 4 and Rangareddigari Viswanatha Reddy went a little forward
to the terrance of Rachamalla Krishna Reddy and cried out v1hoever was prepared to fight should (could) come" and "then all the
accused herein and Lakshmi Reddy and Narasimha Reddy wbo are
now dead went upto the terrace of Reddigari
Ramireddy." It is
therefore quite clear that the party of the accused did not go to their
terrace of their own accord for committing any offence. It is true
that A-2, A-4, A-6 and A-9 were armed with guns and fired them
some time thereafter, but there is
nothing in
the testimony of
P.Ws. 1, 2 and 3 to show that they did so in pursuance of the common
object of the other persons who were on the terrace at that .time. We
are mindful of the fact that under the explanation to section 141
l.P.C., an assembly which was not unlawful when it assembled may
subsequently become an unlawful assembly, but there is nothing in
the testimony of the three police witnesses to show that this was so
in the present case or that the other accused exhorted those who fired
the guns or knew that the guns would be fired. . An offence will no
doubt fall -within the purview of section 149 I.P.C. even if membelt
of the assembly knew that it was "likely to be committed" in prosecu'.ion of their common object or if the offence was such as the nfombers of that assembly knew to be likely to be committed in prosecution of that object. There is however nothing in the statements of the
three police witnesses to prove that thi~ was so.
Section 149 I.P.C.
will not therefore fasten criminal liability on the other accused.
\
K. N. REDDY v. ANDHRA PRADESH (Shinghal, !.)
81
As has been stated, the High Court has
invoked
Gection 151
I.P.C. for convicting the other accused under section 149 I.P.C. and
has made a reference to the warning which was given by the policemen at tk time of the incident. Section 151 will however be attracted
or.ly if there was evidence to show that the assembl_y had been "fawfully commanded to disperse."
But there is nothing in the stafcments of the three police witnesses to show that they gave any such
command.
They have merely stated that they warned the two factions who were pelting stones, and none of them has stated that any
command for dispersal was given by any of them.
The High Court
therefore erred in invoking section 151 l.P.C. for the purpose of convicting the other accused with the aid of section 149 l.P.C.
It would thus appear that there is no reliable evidence to prove
that the accused assembled at the terrace of Reddigari Ramireddy's
house for the purpose of committing any offence. On the other hand,
it has been established from the statements of P.Ws. 4 ~nd 5 tbat
they went there on !_heir aggressive call.
There is also no ~viden-ce
to show that the other members of the assembly knew that those who
were armed with guns were likely to· use them or that they exhorted
or encouraged the firing.
The version regarding their being armed
with spears cannot be accepted as it has not been mentioned in the
first information report.
Moreover, a~ has been pointed out, spears
could not possibly have been used because of the intervening distance
and it is a fact that no injury was inflicted on anyone with ihese
weapons.
The distance which separated the
two parties
was fo
considerable that even stones did not hit anyone.
We are therefore unable to uphold the conviction of the other accused with the
aid of section 149 I.P.C. and they deserve to be acquitted.
In the result !lie appeal fails in so far as the conviction and se·ntences of appellants A-4, A-6 and A-9 arc concerned, but it is allowed
in respect of the other eight appellants and they are acquitted of the
offences of which they have been convicted and
sentenced by the
High Court. They are in jail and shall be released forthwith.
S.R.
Appeal allowed in part.
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