S. Rangarajan ( 1 ) THIS Revision Petition is directed against the conviction by the learned Additional Sessions Judge (Shri P. K. Bahrl) of only the two petitioners, out of six persons who were charged and convicted by the trial court, under sections 452/149, 323/149 and 147/149 Indian Penal Code. , maintaining the sentences of imprisonment for three months on each count, to run concurrently, in the following circumstances. ( 2 ). There happened to be rivalry amont two unions of hotal employees. It is alleged that on 4-12-1972 when Kishori Lal (P. W. 3) was agoing to his house at about 11. 45 p. m. he met Man Singh (Petitioner No. 1) near the Green Hotel and a altercation took place between them. It is stated that they accused each other of embezzling union funds. Apprehending some danger, during the heated arguments, Kishori Lal left and came towards Taj Mahal hotel and was climbing up the stairs when Man Singh (petitioner) and Daulat Ram (acquitted by the learned Additional Sessions Judge) came there and caught hold of Kishori Lal and beat him up. Meanwhile the Manager of the hotel Gopal Dutt (P. W. 6) and the Accountant Manmohan (P. W. 1) came upstairs and tried to intervene. Man Singh threw Kishori Lal on the ground and beat him up with a wooden stick (Phatti) which was proba- bly picked up at the scene. It was further stated that 10 to 12 persons were led by Man Singh when he came to the hotel chasing Kishori Lal and that others also belaboured him with fists and slaps. The injuries thus caused to Public Witness. 3 do not appear to have been anything but simple. ( 3 ). A telephonic message was sent to the Police who arrived at the spot. The assailants went away. The statement (Ex, Public Witness. 6/a) of Gopal Dutt was recorded by the Police on the basis of which a formal F. I. R. was registered. Though the F. I. R. mentioned the names of only two petitioners as having beaten Kishori Lal the names of 10 to 15 others said to have accompanied them were not mentioned. In his evidence Gopal Dutt referred to 10 to 15 per- sons accerpanying the two petitioners and he also idnctified all the six accused. Though the F. I. R. mentioned the names of only two petitioners as having beaten Kishori Lal the names of 10 to 15 others said to have accompanied them were not mentioned. In his evidence Gopal Dutt referred to 10 to 15 per- sons accerpanying the two petitioners and he also idnctified all the six accused. The learned trial Magistrate convicted all the six persons, but the learned Additional Sessions Judge rightly gave the benefit of doubt to the four accused, other than the two petitioners, on the ground that there had been reference in the F. I. R. only to the petitioners by their names. Nonetheless the learned Additional Sessions Judge has convicted the two petitioners. Invoking section 149, in respect of the three substantive offences in respect of section 141, 452 and 323 I. P. C. and confirmed the convictions imposed on the two petitioners by the learned trial Magistrate, as already noticed. ( 4 ). Shri Bawa Shivcharan Singh, learned counsel for the petitioners, contends that in view of the findings of the learned Additional Sessions Judge giving the benefit of doubt to to four accused, other than the two petitioners, section 149 Indian Penal Code. should not have been invoked. (The charge was. . . ). ( 5 ). The way in which the charge had been framed was not quite happy because it did not even set out clearly whether only 6 persons were members of the unlawful assembly or more persons were involved; in view of the material which the learned trial Magistrate had before him, namely, the evidence of Gopal Dutt and the F. I. R. making reference to the presence of 10 to 15 persons, other than the two petitioners specifically named, the charge should have specifically stated that the six- named persons along with others (the rest) formed an unlawful assembly. There is evidence, which has been rightly accepted by the learned Additional Sessions Judge, that there were at least 8 to 10 persons other than the two petitioners who had formed themselves into an unlawful assembly. In view of this finding, despite the way in which the charge has been framed (the charge itself does not exclude expressly the other persons) the convictions invoking section 149 Indian Penal Code. do not appear to be open to question. In view of this finding, despite the way in which the charge has been framed (the charge itself does not exclude expressly the other persons) the convictions invoking section 149 Indian Penal Code. do not appear to be open to question. Reference in this connection may be made to a decision of the Supreme Court in Mohan Singh v. State a/punjab (A. I. R. 1963 S. C. 174) where Gajendragadkar, J. (as he then was), speaking for the Court, laid down the law as follows : "in dealing with the question as to the applicability of S. 149 in such cases, it is necsssary to bear in mind the several categories of cases which come before the Criminal Courts for their decision. If five or more persons are named in the chargi as composing an unlawful assembly and evidence adduced by the prosecution proves the charge against all of them, that is a very clear case where S. 149 can be invoked. It is, however, not necessary that the five or more persons must be convicted before a charge under S. 149 can be successfully brought home to any member of the unlawful assembly. It may be that less than five persons may be charged and convicted under S. 302/149 if the charge is that the persons before the Court along with others named constituted an unlawful assembly ; the other persons so named may not be available for trial along with their companions for the reason, for instance, that they have absconded. In such a case the fact that less than five persons are before the Court does not mike section 149 inapplicable for the simple reason that both the charge and the evidence seek to prove that the persons before the Court and others number more than five in all and as such, they together Constitute an unlawful assembly. Therefore in order to bring home a charge under S. 149 it is not necessary that five or more persons must necessarily be brought before the court and convicted. Similarly, less than five persons may be charged under S. 149 if the prosecution case is that the persons before the Court and others formed assembly, these others being persons not identified and so not named. Similarly, less than five persons may be charged under S. 149 if the prosecution case is that the persons before the Court and others formed assembly, these others being persons not identified and so not named. In such a case, if evidence shows that the persons before Court along with unidentified and un-named assilants or members composed an unlawful assembly, those before the Court can be convicted under section 149 though the un-named and un-identi-fied persons are mt traced and charged. Cases may also arise where in the charge the prosecution names five or more persons and alleges that they constituted an unlawful assembly. In such cases, if both the charge and the evidence are confined to the persons named in the charge and out of the persons so named two or more are acquitted leaving before the court less than five persons to be tried then S, 149 cannot be invoked. Even in such cases it is possible that though the charge names, five or more persons as composing an unlawful assembly, evidence may never the less show that the unlawful assembly consisted of some other persons as well who were not identified and so not named. In such cases, either trial court or even the High Court in appeal may be able to come to the conclusion that the acquittal of some of the persons named in the charge and tried will not necessarily displace the charge under section 149 because along with the two or threepersons convicted were others who composed the unlawful assembly but who have not been identified and so have not been named. In such cases, the acquittal of one or more persons named in the charge dies not affect the validity of the charge under section 149 because on the evidence the court of facts is able to reach the conclusion that the persons composing the unlawful assembly, nevertheless were five or more than five. It is true that in the last category of cases, the court will have to be very careful in reaching the said conclusion. But there is no legal bar which prevents the court from reaching such a conclusion. It is true that in the last category of cases, the court will have to be very careful in reaching the said conclusion. But there is no legal bar which prevents the court from reaching such a conclusion. The failure to refer in the charge to other members of the unlawful assembly tin-named and un-identified may conceivably raise the point as to whether prejudice would be caused to the persons before the court by reason of the fact that the charge did not indicate that un-named persons also were members of the unlawful assembly. But apart from the question of such prejudice which may have to be carefully considered, there is no legal bar preventing the Court of facts from holding that though charge specified only five or more persons the unlawful assembly in fact consisted of other persons who were not named and identified. That appears to be the true legal position in respect of the several categories of cases which may fall to be tried when a charge under section 149 is framed", (emphasis added) ( 6 ). In this case not even a ground has been raised that by the manner in which the charge was trained the accused, were prejudiced, but I have myself borne this aspect in mind and I do not see how the assused were conceivably prejudiced. There has been reference made to the presence of more than 5 accused as mentioned in the earliest report ; there was also un-impaachable evidence of Gopal Dutt whose evidence has been accepted by both the courts on this question, though benefit of doubt was given regarding the identity of the other four accused by reason of their names not having been mentioned in the earliest information to the Police. I rule out the possibility of any prejudice to the petitioners on this score.- ( 7 ). For the sake of completeness, and for a fuller understanding of the legal position, reference may also be made to a recent decision of the Supreme Court in Dharam Pal v. State of U. P. (A. I. R. 1975 S. C. 1917) where Beg. J. discussed the prior decisions and observed as follows : "it is tiue that the acquittal of an accused person does raise, in the eye of law, a presumption that he is innocent even if he was actually guilty. J. discussed the prior decisions and observed as follows : "it is tiue that the acquittal of an accused person does raise, in the eye of law, a presumption that he is innocent even if he was actually guilty. But, it is only the acquitted accused person and not the convicted accused persons who can, as a rule, get the benefit of such a presumption, the effect of findings on questions of fact depends upon the nature of those findings. If, for example only five known persons are alleged to have participated in an attack but the Courts find that two of them were falsely implicated, it would be quite natural and logical to infer or presume that the participants were lesss than five in number. On the other hand, the Court holds that the assailants were actually five in number, but there could be a doubt as to the identity of two of the alleged assailants, and. therefore, acquits two of them. the others will not get the benefit of doubt about the identity of the two accused so long as there is a firm finding, based on good evidence and sound reasoning, that the partici pants were five or more in number. Such a case is one of doubt only as to identity of some participants and not as to the total number of participants. It may be that a definite conclusion that the number of participants was at least five may be very difficult to reach where the allegation of participation is confined to five known persons and there is doubt about the identity of even one. But, where a large number of known persons (such as eighteen, as in the case before us), are alleged to have participated and the Court acts on the principle that it is better to err on the side of safety, so that no injustice is done to a possibly wrongly implicated accused, and benefit of doubt is reaped by a large number, with the result that their acquittal, out of abundant caution, reduces the number of those about whose participation there can be no doubt to less than five, it may not be really difficut at all, as it is not in the case before us, to reach the conclusion that, having regard to undeniable facts, the number of participants could not possibly be less than five". ( 8 ). ( 8 ). In the circumstances I find that the petitioners were properly convicted in the aforesaid manner. It must, however, be pointed out that it is really superfluous to impose two seprarte sentences for offences under section 147 and 323 Indian Penal Code. A sentence under one count will equally serve a sentence under the other; where a charge is framed under section 147 Indian Penal Code. a separate charge under section 323 I. P. C. , would, in a case like the present, be a mere surplusage. Having regard to the background of the quarrel and the facts of this case, which was nothing more than a petty and common enough trade union quarrel which developed suddenly, the ends of justice do not require that these petitioners who are poor labourers should be sent back to jail for undergoing the remaining portions of sentences imposed. I consider the ends of justice will be met by reducing the sentence to the period of imprisonment already undergone and by directing each of them, in addition, to pay a fine of Rs. 50. 00 under sections 147 Indian Penal Code. and 452 Indian Penal Code. alone and in default to undergo rigorous imprisonment for two weeksu nder each count. Time for payment of fine one month.