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(2) that certainly not less than five persons took part in the beating of the two deceased; and (3) that the corroboration required by prudence is afforded by the presence of the blood stained clothes found on the persons of the four appellants who have been convicted. "

As regards the three accused whom they acquitted the learned Judges say-

The other three accused may or may not have taken part in the affair."

Now it is clear from the above that it is impossible to ascribe any particular injury to any particular person. Therefore' it is impossible to convict any one of the accused of murder simpliciter under section 302, nor do the learned Judges attempt to do that. They convict under section 302 read with section 149. But section 149 requires the presence of five persons who share the common object. It is true that in one place the learned Judges say that there were certainly not less than five present but in the very next breath they say that the three whom they acquit "may or may not have taken part in the affair". If those three -are eliminated, then we are left with only four and that militates against their previous finding that they were at least five.