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CASE NO.: Appeal (crl.)  599 of 2004

PETITIONER: Meerza Jamshed Baig

RESPONDENT: State of Andhra Pradesh

DATE OF JUDGMENT: 08/04/2008

BENCH: B.N. AGRAWAL & G.S. SINGHVI

JUDGMENT: JUDGMENT O  R  D  E  R

CRIMINAL APPEAL NO.599 OF 2004

       Heard learned counsel for the parties.         The sole appellant, along with Meerza Harshad Ali Baig, Meerza Khadar  Baig and Meerza Ansar Baig, was tried and by judgment rendered by the Trial  Court, accused Meerza Khadar Baig and Meerza Ansar Baig were acquitted, whereas  the appellant and Meerza Harshad Ali Baig were convicted under Section 302 of the  Indian Penal Code [hereinafter referred to as the ‘I.P.C.’] and sentenced to undergo  imprisonment for life and to pay fine of Rs.1,000/- each; in default, to undergo further  imprisonment for a period of three months.  Against the order of acquittal, the State  of Andhra Pradesh filed an appeal before the High Court, whereas both the convicted  accused persons, including the appellant, preferred an appeal against their conviction.   The High Court dismissed the appeal filed on behalf of the State of Andhra Pradesh  and confirmed the order of acquittal, whereas partly allowed the other appeal by  acquitting Meerza Harshad Ali Baig of the charge.  So far as the appellant is  concerned, his conviction under Section 302 I.P.C. has been confirmed.  Hence, this  appeal by special leave. ....2/-

- 2 -         Against the order of acquittal of other three accused persons, the State has  not preferred any appeal.         According to the prosecution case and evidence, there were only four  accused persons and they indiscriminately assaulted with dagger Shaikh Abdul Azeez,  who succumbed to injuries.  Dr. L.C. Obulesu [P.W.11] stated that death was caused  as a result of cumulative effect of all the injuries.  Mohammed Syeed [P.W.1] stated,  during the course of cross examination, that the appellant assaulted the deceased on  the right shoulder.  The doctor in his evidence, has nowhere stated that the injury on  the right shoulder, i.e., injury No.1, was a fatal one.  As the appellant cannot be said  to have inflicted the fatal injury, the High Court was not justified in upholding his  conviction under Section 302 I.P.C.  The appellant could not have been convicted  under Section 302/34 I.P.C., as there was nobody else with whom he could have  shared the common intention in view of the fact that there were only four accused  persons, out of whom, three persons have been already acquitted.  In view of these  facts, we are of the view that the High Court was not justified in upholding the  conviction of the appellant.         Accordingly, the appeal is allowed, conviction and sentence of the  appellant are set aside and he is acquitted of the charge.  The appellant, who is in  custody, is directed to be released forthwith, if not required in connection with any  other case.