ATMARAM ZINGARAJIversusSTATE OF MAHARASHTRA

A                          ATMARAM ZINGARAJI
                                        v.
                         STATE OF MAHARASHTRA

                                AUGUST 13, 1997

B               [M.K. MUKHERJEE AND D.P. WADHWA, JJ.)

          Indian Penal Code, 1860 :

          S. 302 and 326-Nine persons including the appellant prosecuted for
C offences u/ss. 147, 148, 302/149 and 341/14<}-T!ial Cowt Acquitted-High
  Court convicted the appellant u/s. 302 (simplicitor)--Held, evidence on record
  indicates that tlze deceased sustained injuries by other weapons also and his
  death was the outcome of all the injuries-Appellant would, there/ore, be
  guilty of offence u/s. 326 as he caused a grievous injwy to the deceased-Con-
  viction u/s. 302 set aside-Appellant convicted u/s 326 and sentenced to
D 1igorous i1?7prisonment for 6 years.
          Krishna v. State of Maharashtra, AIR (1963) SC 1413, referred to.

         CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
    118of1994.
E
         From the Judgment and Order dated 19.8.92 of the Bombay High
    Court in Crl.A. No. 225 of 1988.

          V.N. Ganpule, Ms. Sushma Manchanda for the Appellant.

p         D.M. Nargolkar for the Respondent.

          The following Order of the Court was delivered :

         Nine persons including Atmaram Zingaraji, the appellant before us,
    were placed on trial before the Additional Sessions Judge, Akola, to
G   answer the following charges :

             "That on or about the 5th day of June, 1987 at about 3.00 pm at
             village Swali, you accused nos. 1 to 9 were meniber of an unlawful
             assembly and in prosecution of the common object of such assemb-
             ly committed the offence of rioting and thereby committed an
H            offence punishable under Section 147 of the Indian Penal Code.
                                         432
                     A1MARAMZINGARAJlv. STATE                             433

         Secondly, on the above day date, time and place you accused Nos.       A
         1 to 9 were a member of an unlawful assembly and did in prosecu-
         tion of the common object of such assembly, viz., to cause death
         of Pralhad Mahadu Ingole, committed the offence of rioting and
         the time you were armed with deadly weapons like sticks, axes,
         daggers etc. and thereby committed an offence punishable under         B
         Section 148 of the Indian Penal Code.

         Thirdly, on the above day date and time and place, you accused
         nos. 1 to 9 in furtherance of your common object caused the death
         of Pralhad Mahadu Ingole by intentionally or knowingly assaulting
         him with weapons like stick, axe, dagger and there by committed        C
         murder, as offence punishable under Section 302 of I.P.C. read
         with Section 149 I.P.C.

          Fourthly, on the above day, date and time and place you accused
          nos. 1 to 9, in furtherance of your common object wrongfully
          restrained Hiraman, deceased Pralhad and his mother Kamalabai         D
          from going to the police station and thereby committed an offence
          punishable under Section 341r/w149 of LP. Code."

        On conclusion of the trial, the learned Judge acquitted them of all
                                                                                E
                 0

 the charges and aggrieved thereby the respondent - State of Maharashtra
 preferred an appeal. The High Court disposed of the appeal by setting
 aside the acquittal of the appellant and. convicting him under Section 302
 I.P.C. (simpliciter) and affirming the acquittal of the eight others. Hence
 this statutory appeal at the instance of the appellant.

         On going through the impugned judgment of the High Court we find F
  that it has reappraised the entire evidence and given cogent and convincing
  reasons for arriving at the conclusion that the findings of the trial court, so
  far as they related to the acquittal of the appellant, were perverse. With
  the above conclusion of ihe High Court we are in complete agreement. As
  regards the other accused persons, the High Court held that the claim of
                                                                                  G
  the eye.witnesses that they also took place in the murder was an improve-
. ment and that the trial court was fully justified in acquitting them.

       The next question that falls for our determination .is'whether, after
 having affirmed the acquittal of all others, the High Court could convict ·
 the appellant under Section 302 1.P.C. (simplic:iter). The charges framed H
    434                   SUPREME COURT REPORTS [1997) SUPP. 3 S.C.R.

A against the accused (quoted earlier) and the evidence adduced by the
    prosecution to bring them home clearly indicate that according to its case,
    the nine persons arraigned before the trial court - and none others, either
    named or unnamed, (totalling minimum five or more person) - formed the
    unlawful assembly, Consequent upon the acquittal of the other eight the
B   appellant could not be convicted with the aid of Section 149 I.P.C. more
    particularly, in view of the concurrent findings of the learned Courts below
    that the other eight persons were not in any way involved with the offences
    in question.

          The same principle will apply when person are tried with the aid of
C   Section 34 I.P.C. In the case of Krishna v. State of Maharashtra, AIR (1963)
    SC 1413 a four Judge Bench of this Court has laid down that when four
    accused persons are tried on a specific accusation that only they committed
    a murder in fortherance of their common intention and three of them are
    acquitted. the fourth accused cannot be convicted with the aid of Section
    34 I.P.C. for the effect of law would be that those who were with him did
D   not conjointly act with the fourth accused in committing the murder.

           In either or the above situations therefore the sole convict can be
    convicted under Section 302 I.P.C. (simpliciter) only on proof of the fact
    that his individual act caused the death of the victim. To put it differently,
E   he would be liable for his own act only. In the instant case, the evidence
    on record does not prove that the injuries inflicted by the appellant. alone
    caused the death; on the contrary the evidence of the eye witnesses and
    the evidence of the doctor who held the post mortem examination indicate
    that the deceased sustained injuries by other weapons also and his death
    was the outcome of all the injuries. The appellant, therefore, would be
F   gnilty of the offe~ce under Section 326 l.P.C. as he caused a grievous injury
    to the deceased with the aid of a jambia (a sharp cutting instrument).

          For the foregoing discussion we set aside the. conviction and sentence
    recorded against the appellant under Section 302 I.P.C., convict him under
G   Section 326 I.P .C. and sentence him to suffer rigorous imprisonment for
    six years. The appeal is, thus, disposed of.

    R.P.                                                     Appeal disposed of.