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PETITIONER: ATMARAM ZINGARAJI

       Vs.

RESPONDENT: STATE OF MAHARASHTRA

DATE OF JUDGMENT:       13/08/1997

BENCH: M.K. MUKHERJEE, D.P. WADHWA

ACT:

HEADNOTE:

JUDGMENT:                 THE 13TH DAY OF AUGUST,1997 Present:                Hon’ble Mr.Justice M.K.Mukerjee                Hon’ble Mr. Justice D.P.Wadhwa V.N.Ganpule, Sr.Adv., Ms.Sushma Manchanda, Adv. with him for the appellant D.M.Nargolkar, Adv. for the Respondent                          O R D E R      The following Order of the Court was delivered:                          O R D E R      Nine persons including Atmaram Zingaraji, the appellant before us,  were  placed  on  trial  before  the  Additional Session Judge, Akola, to answer the following charges :      "That on  or about  the 15th day of      June, 1987  at  about  3.00  pm  at      village Swali,  you accused  nos. 1      to 9  were member  of  an  unlawful      assembly and  in prosecution of the      common  object   of  such  assembly      committed the  offence  of  rioting      and thereby  committed  an  offence      punishable under Section 147 of the      Indian Penal Code.      Secondly, on  the above  day  date,      time and  place you  accused nos. 1      to 9  were a  member of an unlawful      assembly and  did in prosecution of      the common object of such assembly,      viz., to  cause  death  of  Pralhad      Mahadu   Ingole,    committed   the      offence of  rioting and at the time      you were  armed with deadly weapons      like sticks, axes, daggers etc. and      thereby   committed    an   offence      punishable under 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

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    mahadu Ingole  by intentionally  or      knowingly   assaulting   him   with      weapons like stick, axe, dagger and      there  by   committed  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  from going to the      police    station    and    thereby      committed  an   offence  punishable      under Section  341 r/w  149 of I.P.      Code."      On conclusion of the trial, the learned Judge acquitted them of all 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 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 the High Court we are in  complete agreement.   As  regards the  other accused persons, the  High Court  held that  the claim  of the  eye- witnesses that  they also  took place  in the  murder was an improvement 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 I.P.C. (simpliciter). The charges framed against the accused (quotedd  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  persons)  -  formed  the unlawful assembly.   Consequent  upon the  acquittal of  the other eight  the 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  persons are tried with the aid of Section 34 I.P.C. in the case of Krishna vs. State of  Maharashtra [AIR  1963  SC  1413]  as  four  Judge persons are  tried on  a specific  accusation that only they committed a  murder in furtherance 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 not conjointly act  with the  fourth accused  in committing  the murder.      In either  of 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,

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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 guilty of the offence under  Section 326  I.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 Section 326 I.P.C. and sentence him  to suffer rigorous imprisonment for six years. The appeal is, thus, disposed of.