Criminal Appeal No 538 of 1983
From the Judgment and Order dated 641982 of the Andhra Pradesh High Court in Crl
A No 469 of 1981
G Narasimhulu for the Appellants
TVSN Chari Ms Suruchi Aggarwal and Ms Manjula Gupta for the Respondent
The Judgment of the Court was delivered by KULDIP SINGH J
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 IPC on the allegations that they caused the death of Madda Laksha mandas 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 acquit ted on the following reasoning   
We feel that it would be safe to accept the evidence of PWs 1 and 2 to the extent it is corroborated by the evidence 6 of PW3 in so far as the presence and partic ipation of the accused in the attack on the deceased is concerned
Accepting the evidence of PW3 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 IPC We set aside the conviction and sentence of A 4 to A 6 under Sections 148 and 302 read with 149 IPC and acquit them This Court granted leave to appeal on the limited ques tion of applicability of Section 149 IPC
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 149 IPC 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 IPC
In our view there is force in the contention of the learned counsel for the appellants
The appellants being only three in number there was no question of their forming an unlawful assembly within the meaning of Section 141 IPC
It is not the prosecution case that apart from the seven accused persons there were some other unidentified persons who were involved in the crime
The High Court clearly fell into error in confirming the conviction and sentence of the appellants under Sections 148 and on apply ing 149 IPC on the ground that they formed an unlawful assembly alongwith some unidentified persons
The prosecu tion case from the very beginning was that A1 to A7 the named persons formed the Unlawful assembly
A 4 to A 7 having been acquitted the remaining three appellants cannot be convicted under Sections 148 and on applying 149 IPC We therefore set aside the conviction of the appellants under the said sections
The question still remains as to whether the appellants can be convieted under Section 302 read with Section 34 IPC
Both Sections 149 and 34 IPC deal with a combina tion of persons who become liable to be punished as sharers in the commission of offences
The non applicability of Section i49 IPC is therefore no bar in convicting the appellants under 7 Section 302 read with section 34 IPC if the evidence discloses commission of an offence in furtherance of the common intention of them all
PW 1 the wife of the deceased PW 2 the daughter of the deceased and PW 3 an adjoining land owner are the three eye witnesses to the occurrence
It is in evidence that the complainant and the accused belonged to opposite factions and there was long standing enmity between the parties
During the last 30 years there had been murders and rioting between the two factions
The deceased Madda Lakshamandas was undergoing life imprisonment for the murder of one of the persons belonging to the group of the accused
He had come on parole
On the day of occurrence at about 700 AM when he was passing near the field of A 1 he was attacked by the accused party
According to the eye witness es A 1 and A 3 were armed with spears A 2 A 4 A 5 and A 6 with knives and A 7 was armed with a stick
All of them way laid the deceased and dragged him into the Tobacco garden of A 1
It is in evidence that all the accused indis criminately inflicted injuries on the deceased with their respective weapons
When the deceased fell down the ac cused kept on giving him spear knife and stick blows
The deceased was crying for water and when his daughter brought water A 2 caught hold of her and pushed her aside
She was also given beating by fists
Thereafter A 1 left the spear and took a stick and gave beating to the deceased on his heals and chest and A 3 chopped of the fingers of left hand of the deceased with the knife
A 2 further gave blows to the deceased on his head
The deceased died instantaneously on the spot
Thereafter at the asking of A 1 A 2 and A 3 dragged the dead body from the field of A 1 and placed the same on the road
There were as many as 18 injuries on the person of the deceased
Seven of those were deep penetrating wounds 8 lacerated wounds and remaining were abrasions
The injuries caused fracture on the right perietal bone result ing in the opening of the skull
The fourth rib was broken and there was an injury to the lung
There were injuries all over the body
Keeping in view the manner of attack as disclosed by the eye witnesses and the number and nature of injuries we have no hesitation in holding that the appellants made the mur derous attack on the deceased and caused his instantaneous death
We are satisfied that the appellants acted in fur therance of their common intention of murdering the de ceased
We therefore hold the appellants guilty under Section 302 read with Section 34 IPC 8 Accordingly we convert the conviction of the appellants to one under Section 302 read with section 34 IPC and keep them sentenced to fife imprisonment
Appellants A 1 and A 3 are on bail under orders of this Court
We cancel the bail order
These appellants shall surrender to their bail bonds to undergo the sentence of imprisonment
TNA Appeal disposed of


Summary:
The appellant Housing Board which had entered into four contracts with the respondent for construction of tenements within a certain time limit terminated them after giving notice on the ground that the respondent had failed to complete the construction work despite several extensions granted to him and filed a suit in the Court of Civil Judge claiming damages of over Rs4 lakhs
The respondent filed appllcations under Sections 34 and 20 of the  for stay of the suit and for directions to the appellant Board for filing the arbitration agreement in the Court and also for appointing arbitrator in terms of clause 25 of the agreement
As per Court s order the appellant filed the agreement in the Court and appointed the Arbitra tor
The Arbitrator made four awards granting the claims of the respondent to the extent of over Rs8 lakhs and filed them in the Court for making them Rule of the Court
The appellant s objections for setting aside the awards on the ground that the Arbitrator had misconducted himself by not framing the main issue viz whether or not the claimant abandoned the work and thereby committed the breach of the agreement by ignoring the letter of termination where in it was clearly stated that the termination had been done on account of the abandonment of the work by the claimant and failed to decide upon the question of the abandonment of work and wholly side tracked the issue and also by not giving reasons for the award as required under the agree ment under which he was appointed were rejected by the Civil Court which confirmed the awards and made them the Rule of the Court
The appellant s appeals against this decision was allowed by the High Court which set aside the Civil Court s order and sent back the awards to the arbitra tor for giving reasons as required under clause 25 of the agreement which specifically provided that in all cases where amount of 905 claim was Rs50000 and above the Arbitrator was bound to give reasons
In the appeal before this Court on behalf of the appellant Housing Board it was contended that having held that the arbitrator was guilty of misconduct and the awards were liable to be vitiated on that ground the High Court ought to have set aside the awards instead of sending them back for recording reasons which was totally unwarranted by law
On behalf of the respondent it was contended that the High Court s order remanding the awards for recording rea sons clearly fell within the purview of Sec 161c of the  as the objection to the legality of the award was apparent on the face of it and not within the provisions of Sec
30 of the Act inasmuch as the arbitrator had not misconducted himself or the proceedings and the awards in question had not been improperly procured
Dismissing the appeals and confirming the awards this Court HELD 11 Section 16 empowers the Court to remit the award to the Arbitrator for reconsideration only in three cases specified therein
Clause c of Sub Section 1 provides that the award shall be remitted to the Arbitrator by the Court where an objection to the legality of the award is apparent on the face of it
710D 12 No doubt in the instant case the High Court has come to a finding that the Arbitrator was guilty of miscon duct for his failure to give reasons as required but there is nothing to show that the Arbitrator misconducted himself or the proceeding in any other manner nor is there anything to show that the awards have been improperly procured nor any allegation far less any finding that the Arbitrator was biased or unfair or he had not heard both the parties or he had not fairly considered the submissions of the parties in making the awards in question
710E 13 It is evident from the four awards made by the Arbitrator that the Arbitrator has considered all the spe cific issues raised by the parties in the arbitration pro ceedings and came to his finding after giving cogent rea sons
The awards cannot under any circumstances be consid ered to be made by the Arbitrator without recording any reasons for the same
In such circumstances it cannot be held that the Arbitrator has misconducted himself or in the proceedings in the matter 906 of giving the awards
The decision of the High Court remit ting the awards back to the Arbitrator for giving reasons is set aside and the awards made by the Arbitrator are upheld and made Rule of the Court
710F G 711A