01 March 1955
Supreme Court


Case number: Appeal (crl.) 139 of 1954






DATE OF JUDGMENT: 01/03/1955


CITATION:  1955 AIR  419            1955 SCR  (1)1332

ACT: Indian  Penal Code (Act XLV of 1860), ss.  302,  307-Charges and conviction by trial court under s. 302 read with s.  149 and under s. 307 read with s. 149 of the Code--Conviction by the  appellate  court  under ss. 302 and 307  of  the  Code- Legality-Code  of  Criminal Procedure (Act V of  1898),  ss. 236, 237-Applicability-Betrial.

HEADNOTE: Where a person has been charged along with others under  ss. 302 and 307 of the Indian Penal Code each, only as read with section  149 of the Code, his convictions and sentences  for the  substantial offences under ss. 302 and 307 of the  Code are  erroneous.   The absence of specific  charges  in  this behalf is a serious lacunas in the proceedings, inasmuch  as the framing of a specific and distinct charge in respect  of every  distinct head of criminal liability  constituting  an offence  is  the foundation for a  conviction  and  sentence therefore  The conviction in these circumstances  under  Bs. 302  and  307  of  the  Code  and  sentences  of  death  and transportation  for  life cannot be  maintained  unless  the Court  is  satisfied,  on the facts of the  case,  that  the accused  has not been prejudiced in his trial.   Whether  or not  in  such  a situation the questioning  of  the  accused during  the  course of his examination under s. 342  of  the Code of Criminal Procedure in relation to the offences under sections 302 and 307 of the Indian Penal Code can be  relied upon  as  obviating the likelihood of prejudice  has  to  be determined with reference to the facts and circumstances  of each case. All  the  circumstances  of the case and  the  evidence  and materials  on  the  record  should be  looked  into  on  the question arising in such a situation as to whether a retrial should be ordered or not.

JUDGMENT: CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 139  of 1954.                             1333



Appeal  by Special Leave from the Judgment and  Order  dated the 29th April 1954 of the Allahabad High Court in  Criminal Appeal No. 1101 of 1953 and Referred No. III of 1953 arising out  of the Judgment and Order dated the 3rd September  1953 of  the Court of the Sessions Judge at Fatehpur in  Sessions Trial No. 50 of 1953. Sadhan   Chandra  Gupta  and  Janardhan  Sharma,   for   the appellant. K.   B. Asthana and C. P. Lal, for the respondent. 1955.  March 1. The Judgment of the Court was delivered by JAGANNADHADAS J.-This is an appeal by special leave from the judginent  of  the  High  Court  at  Allababad.   The   sole appellant before us has been convicted by the Sessions Court under  sections 148, 307 and 302 of the Indian  Penal  Code, and  sentenced to rigorous imprisonment for two and  a  half years  under section 148, to transportation for  life  under section  307,  and  to  death  under  section  302.    These convictions  and sentences have been confirmed by  the  High Court.  At the trial there were 19 other accused along  with this appellant.  All of them were convicted and sentenced by the  trial court under various sections of the Indian  Penal Code.  On appeal ten out of them were acquitted by the  High Court.   In  respect  of the  remaining  nine  besides  this appellant,  the  convictions and  sentences  were  partially modified.  But this appeal is not concerned with them.   The incident  in the course of which these offences are said  to have  been  committed took place in the evening of  the  4th January,  1953, shortly before sun set in a  village  called Sonari in the district Fatehpur, Uttar Pradesh.  During that incident  two persons, Bisheshwar and Surajdin, are  alleged to  have received gun-shot wounds.  Bisheshwar survived  but Surajdin  died  on  the  spot.   The  back-ground  for  this incident was as follows: In the village of Sonari there were two factions between whom there was prior history of  enmity resulting  in  criminal  prosecutions by  each  against  the other.  It 1334 may  be  broadly  stated that the  accused  persons  in  the present  case  belong  to  one  party  and  the  prosecution witnesses as well as the deceased person belong to the other party.   In the year 1946 there was rioting between them  in which   two  of  the  present  prosecution  witnesses   were assaulted.  This led to a criminal case against some of  the present accused and others, in which they were convicted and sentenced, the members of the other party figuring there  in as prosecution witnesses.  Again, just five months prior  to the  present  incident,  there was another  rioting  in  the village  between  these  two  groups.   In  that,  one  Rain Bharosey  a member of the party of the present  accused  was killed.  As a result 15 persons of the opposite-party (i. e. the  party  of  the  present  prosecution  witnesses)   were prosecuted.  By the date of this incident that case had been committed  to  the sessions but the sessions trial  had  not started.   According to the prosecution case,  the  occasion for  the incident, which concerns us, was that some  of  the present  accused wanted to persuade or prevent a  member  of the opposite-party by name, Bisheshwar-P.W. 2 in this  case- from  doing what is called pairavi on behalf of the  accused in  that case. (Pairavi is said to be the active  assistance in  relation  to Court proceedings which a friend  or  agent renders to a litigant).  While, Bisheshwar, P.W. 2, and  two others  Bhurey  Lal,  P.W. 1, and Ram Saran,  P.W.  3,  were sitting in front of the house of Ram Saran on the evening of the  4th January, 1953, the present appellant and the  other accused are said to have turned up before them,’ lathies  in



hand.   The  appellant is said to have asked  Bisheshwar  to give up doing pairavis in the then pending case on behalf of the  accused therein.  Bisheshwar having declined to do  so, the  appellant is said to have pulled out a pistol from  his inner pocket and fired at him, as a result of which he  fell down on the ground.  P.Ws. 2 and 3 are said to have  dragged him  inside the house and chained the door from inside,  run up  the  roof  and raised an alarm, whereupon  a  number  of persons of the other party are said to have come running up. One of the persons who so came running up was                             1335 Surajdin who was cutting fodder at the house of Bhurey  Lal, P.W. 1. The appellant is said to have fired at him with  the pistol.  He fell down and died on the spot.  Another  person named Gaya Prasad is said to have received some minor  lathi injuries.   Accused  party thereafter is said  to  have  run away.  First information of the report was lodged by  Bhurey Lal,  P.W.  1, near about 12 that very night at  the  police station  which  was about nine miles from the scene  of  the occurrence.   The police came on the scene the next  morning and  the usual investigation followed.  The police filed  on the  22nd February, 1953, a charge-sheet for offences  under sections 147, 148, 323/149 and 307/149.  The charge-sheet in so far as it was under section 323/149 related presumably to some  minor  injuries  said to have been  received  by  Gaya Prasad,  and  in  so far as it  was  under  section  307/149 related  presumably  to  the  gun-shot  wounds  received  by Bisheshwar, P.W. 2. It may be noticed that the  charge-sheet did not concern itself with any offence or offences  alleged to  have  been  committed, in bringing about  the  death  of Surajdin  by the firing of a pistol at him.  It is  on  this charge-sheet  that cognizance of the case was taken  by  the Magistrate  and  committal  proceedings  were  started.   It appears,  however, that the complainant-party  finding  that the police challan did not relate to the offence under  sec- tion  302, Indian Penal Code filed, on the 2nd May, 1953,  a private complaint, before the very Magistrate in whose court the  committal  proceedings  were  by  then  pending.   That complaint  was  filed by the same Bisheshwar,  P.W.  1,  who lodged  the  first  information  in this  case  on  the  5th January,  1953.  It sets out substantially the  same  facts. This complaint also was taken on the file of the Magistrate. The enquiry thereon was merged into the enquiry relating  to the   police  challan  case.   The   Magistrate   eventually committed all the 20 accused to take their trial before  the Sessions  Judge  by  framing charges,  under  sections  147, 323/149,  307/149 and 302/149.  There was a specific  charge under section 148, Indian Penal Code against Suraj Pal and 1336 Dharm Raj, the former for being armed with a pistol and  the latter  for  being armed with a pharsa, at the time  of  the commission  of the rioting.  It is in respect of charges  so framed by the committing Magistrate without any amendment or alteration  that  the  accused were tried  in  the  Sessions Court.   It may be mentioned at this stage that the  defence of the accused, apart from the general denial of their  hav- ing anything to do with the incident and denials as to their having  been  present at the occurrence, was to  the  effect that  it was the complainant’s party including the  deceased Surajdin  who formed the unlawful assembly, with the  common object of beating one Ram Pal of the village.  This Ram  Pal had appeared as a prosecution witness at the committal stage in  the  criminal proceedings by then  pending  against  the present prosecution witnesses as accused.  It was also their defence that it was one Ram Bhawan of that party who, in the



course  of the incident, fired pistol shots in the  air  and also shot, later, Surajdin and brought about his death. The  learned Sessions Judge found all the accused guilty  of the  various  offences as charged and  sentenced  them.   On appeal  the High Court considered the  prosecution  evidence with  reference to three aspects. (1) How far the manner  in which  the  prosecution alleged the incident to  have  taken place  can  be accepted; (2) How far  the  prosecution  case regarding the presence and participation of the various per- sons  can be accepted; and (3) What offence can be  said  to have  been made out as against each of them.  On  the  first question the High Court accepted the view that the  incident took place as alleged by the prosecution.  With reference to the  second,  the  High Court set  out  elaborately  various reasons  why  the  prosecution  evidence in  so  far  as  it implicates particular individuals, could not be accepted  at its  face  value and required to be  carefully  scrutinized. With  reference to certain criteria which it was  considered necessary  and right to adopt for purposes of scrutiny,  the High  Court held that the convictions of ten out of  the  20 persons before it should be set aside and that                             1337 the  other ten persons including the present appellant  were participants   in  the  rioting.   Accordingly,  the   Court confirmed the conviction as against these ten under  section 147, Indian Penal Code.  As regards the charge under section 148,  Indian  Penal Code, Dharm Raj was  acquitted  but  the conviction of Suraj Pal was maintained on the ground of  his having  a  pistol in his hand at the time  of  the  rioting. There  remained  the three charges against the  ten  persons under sections 323/149 for injuries on Gaya Prasad,  307/149 in  respect of the gun-shot wounds received  by  Bisheshwar, and  302/149  in respect of the murder of Surajdin.  It  was held  that the assault on Gaya Prasad wasn’t  proved  beyond doubt  and hence, all the accused were acquitted in  respect of  this  charge. As regards the other  two  charges,  i.e., under  sections 307/149 and 302/149, the High Court came  to the  conclusion  that  neither the attempt on  the  life  of Bisheshwar  by pistol fire nor the actual death of  Surajdin by  pistol fire can be said to have been in  prosecution  of the common object of the unlawful assembly nor to have  been within the knowledge of the accused as being so likely.   It was, therefore, held that none of the accused could be found guilty under section 149, with reference to, the attempt  on the  life of Bisheshwar, or the death of Surajdin.  All  the same, in view of the fact that the evidence showed that  the person who inflicted the pistol fire as against both was the appellant  Suraj Pal, it was held that he was guilty of  the offences under sections 307 and 302, Indian Penal Code.   On this  ground, therefore, the High Court, while it set  aside the  convictions  and  sentences of all  the  accused  under sections 307/149 and 302/149, maintained the ’convictions of the  appellant under these two sections and  maintained  the sentences  of transportation for life under section 307  and of  death  under section 302, Indian Penal Code.   The  High Court convicted the other nine persons under section 323/149 in respect of the injuries received by P.W. 2 and  sentenced them therefor. On  the above statement of the course of these  proceedings, one important fact which emerges is that 1338 there have been no direct and individual charges against the appellant  for the specific offences under sections 307  and 302,  Indian  Penal  Code.   The  question  that  arises  is whether’,  without such direct charges the  convictions  and



sentences for those offences can be maintained.  It  appears to us quite clear that a charge against a person as a member of  an unlawful assembly in respect of an offence  committed by one or other of the members of that assembly in  prosecu- tion  of its common object is a substantially different  one from a charge against any individual for an offence directly committed by him while being a member of such assembly.  The liability  of a person in respect of the latter is only  for acts  directly  committed by him, while in  respect  of  the former,  the liability is for acts which may have been  done by  any one of the other members of the  unlawful  assembly, provided that it was in prosecution of the common object  of the assembly or was such as the members knew to be likely to be  so committed.  A charge under section 149, Indian  Penal Code  puts the person on notice only of two  alleged  facts, viz.  (1) that the offence was committed by one or other  of the members of the unlawful assembly of which he is one, and (2)  that  the offence was committed in prosecution  of  the common  object or is such that was known to be likely to  be so committed.  Whether or not section 149, Indian Penal Code creates a distinct offence (as regards which there has  been conflict of views in the High Courts), there can be no doubt that it creates a distinct head of criminal liability  which has   come  to  be  known  as   "constructive   liability"-a convenient phrase not used in the Indian Penal Code.   There can,  therefore,  be  no doubt that  the  direct  individual liability  of  a  person can only be  fixed  upon  him  with reference to a specific charge in respect of the  particular offence.  Such a case is not covered by sections 236 and 237 of  the  Code  of  Criminal Procedure.   The  framing  of  a specific  and distinct charge in respect of  every  distinct bead  of criminal liability constituting an offence, is  the foundation  for  a  conviction and  sentence  therefore  The absence, therefore, of specific                             1339 charges  against the appellant under sections 307  and  302, Indian Penal Code in respect of which he has been  sentenced to  transportation for life And to death respectively, is  a very  serious  lacuna  in the proceedings in so  far  as  it concerns   him.    The  question  then  which   arises   for consideration  is whether or not this lacuna has  prejudiced him in his trial. It  is  perfectly  true  that  the  initial  accusation   as disclosed  by  the  first information  lodged  by  the  com- plainant,  P.W. 1, on the 5th January,  1953,  specifically, was  to  the effect that it was this appellant  who  with  a pistol  fired  both as against Bisheshwar, P.W. 2,  as  also against  the deceased, Surajdin.  It is also true that  this allegation  was repeated in the private complaint  filed  by this  same  P.W.  I  in  May,  1953,  directly  before   the Magistrate.   It  is also undeniable that  the  evidence  in court,  both in the committal proceedings as well as at  the sessions  trial, given by the prosecution witnesses  was  in support  of  that allegation.  But curiously  enough,  apart from  the  absence  of any individual  charges  against  the appellant  for  these specific offences,  even  the  charges against him and others relating to the injuries inflicted on P.W.  2 and the deceased Surajdin are somewhat vague  as  to the  authorship thereof The relevant charges run as  follows (after  specifying  the members alleged  to  constitute  the unlawful assembly): "Firstly:-That you, on the 4th day of January 1953 at  about half  an  hour before sunset in village  Sonari,  formed  an unlawful  assembly with the common object of committing  the murders of Bisheshwar and Suraj Din and committed rioting.



And  thereby committed an offence punishable  under  section 147 of the Indian Penal Code. Secondly:-That  you  on the same date, time  and  place,  in prosecution  of  the  common object  of  the  said  unlawful assembly  of which you were members at that  time  committed the murder of Suraj Din who was shot dead by a pistol fire. And  thereby committed an offence punishable  under  section 302/149 of the Indian Penal Code, 1340 Thirdly:-That  you  on  the same date, time  and  place,  in prosecution  of  the  common object  of  the  said  unlawful assembly of which you were members at that time attempted to commit  the murder of Bisheshwar Singh by means of a  pistol fire. And  thereby committed an offence punishable  under  section 307/149 of the Indian Penal Code". The portions underlined (for the purposes of this  judgment) in the charge under heads 2 and 3 above are curiously vague. They appear to indicate a definite non-committal attitude on the  part of the Public Prosecutor and the Court, which  has the  ultimate responsibility for the framing of the  charge, (vide section 226, Code of Criminal Procedure) as to who  is the active author of the pistol fire referred to under these two  heads  of  charge.  When the charge  was  so  pointedly vague,  no accused was bound to direct his attention in  his defence  to the question as to whether he or  somebody  else was the person who fired the pistol which brought about  the gun-shot wounds.  It has been brought to our notice that the appellant  has been specifically questioned in the Court  of Sessions  under section 342, Code of Criminal  Procedure  on the  footing that he was the person who fired at P.W. 2  and the deceased, Surajdin, and that the accused denied it.  But this cannot be said to remove any prejudice that would arise by  virtue  of the vagueness in the charge at  the  sessions trial,  as  to  who  was the  author  of  the  pistol  fire. Normally  in  a sessions trial the accused has no  right  of cross-examination  after the questioning under section  342, Code  of  Criminal Procedure.  It has  been  suggested  that since such a question was put also in the questioning by the committing  Magistrate under section 342, Code  of  Criminal Procedure,  the  accused had ample notice of  this  specific case before the commencement of the sessions trial.  But  it does  not follow that there could be no prejudice.   On  the other hand, the very fact that in spite of such  questioning the  charges  framed in the Magistrate’s Court,  with  their vagueness,  in so far as this feature therein is  concerned, has been 1341 maintained, before the Sessions Court without any amendment, is likely to have been misleading.  The appellant might well have relied on the absence of any such amendment as being an indication that he was not called upon to defend himself  on the footing of his being the author of the pistol fire.   In a  case so serious as that which involves the  sentences  of transportation for life, and of death, and particularly in a case like the present one, where the death sentence has been awarded in the trial court by distinguishing this  appellant from all the other accused in respect of his individual  act by  way  of  pistol fire, it is difficult to  say  that  the accused  has not been prejudiced by the absence of  specific charges  under  sections  307 and 302,  Indian  Penal  Code. Further, the medical evidence indicates that P.W. 2 as  well as  the  deceased  Surajdin had  gun-shot  wounds  on  their person.   The evidence of the Doctor is to the  effect  that these wounds may have been caused by a country pistol which,



it  is alleged, the appellant had in his hand.  It has  been suggested on behalf of the defence that the Medical  Officer was  not  competent  to  speak about  it  and  that  if  the prosecution  wanted  to  rely thereupon,  they  should  have called an arms expert to speak to the same.  Whether or  not this  comment  is  legitimate,  it  is  clear  that  if  the appellant is to be found directly responsible for inflicting the wounds, noted as gun-shot wounds by the Medical Officer, he  might  well have availed himself of the  opportunity  to elucidate,  by  cross-examination or positive  defence,  the nature  of the fire-arm which would have caused  the  actual injuries  found  on the bodies of P. W. 2  and  of  deceased Surajdin.   In all the circumstances above noticed,  we  are satisfied  that the absence of specific charges against  the appellant under sections 307 and 302, Indian Penal Code  has materially  prejudiced him.  We must accordingly  set  aside the  convictions  and  sentences  of  the  appellant   under sections 307 and 302 of the Indian Penal Code. The further question that arises is whether or not we are to direct  a  retrial  of the appellant  in  respect  of  these offences.  We have given our best considera- 1342 tion to all the circumstances of this case and have for this purpose  looked  into the evidence and the material  on  the record.   The case discloses certain  outstanding  features. At  the  very  outset  and  simultaneously  with  the  first information filed by P.W. 1 in this case, there was  another report  filed  by one Ram Pal at the  same  police  station, almost  exactly  at  the same time,  relating  to  the  same incident.  This is Ex.  P-16 on the record.  This report  is said  to have been lodged at the police station at 12-15  in the  night,  while  the other report is said  to  have  been lodged at 12-10 that night.  The report, Ex.  P-16,  alleged the  present prosecution party to be the aggressors and  put forward, as the occasion for the incident, an attempt on the part  of  the prosecution party to beat Ram  Pal,  the  com- plainant  of  that complaint, for having given  evidence  in support  of the prosecution in the committal proceedings  of the   rioting   case  then  pending  against   the   present prosecution  witnesses (as accused therein)obviously with  a view  to  prevent him from giving evidence in  the  Sessions Court  against them.  That complaint specifically refers  to one  Ram  Bhawan who is P.W. 4 in the present  case  as  the person  who  had a pistol in hand and fired with  it.   That report makes no mention of any injuries having been by  then received  from pistol fire, in the course of that  incident. Of  course, there is no proof, in this case, of any  of  the allegations  in that report.  But it appears from the  order of commitment in this case (which forms part of the  present printed record) that with reference to that report there was pending, at the date of the committal, a cross-case  against some  of the prosecution witnesses in the present  case  for the  same  incident.   The police constable  mohair  of  the police  station where the counter complaint, Ex.   P-16  was lodged and who accepted both the complaints (1) from  Bhurey Lal,  and (2) from Ram Pal, has stated in his evidence  that when  the  complaint, Ex.  P- 16, was filed by Ram  Pal  the present  appellant Suraj Pal had also accompanied  Ram  Pal, the complainant therein.  This may well be claimed to be the conduct of an innocent person.  It is also not without  some significance                             1343 that admittedly and as a matter of fact, the police did  not file  any charge-sheet in the present case against  any  one for  the actual offence of murder under section 302,  Indian



Penal Code and that even in the charge-sheet which they  did file  they  confined the case to section 307,  Indian  Penal Code  but  did not commit themselves as to who  out  of  the members  of  the  unlawful assembly was the  author  of  the pistol  fire.  So far as it appears from the police  charge- sheet  dated  the  22nd February, 1953, as  printed  in  the record before us, there is a statement therein to the effect "Suraj  Pal Singh and Ram Manohar were armed with  pistols". Ram  Manohar is also one of the accused who was put  up  for trial.  The statements of some of the prosecution  witnesses furnish  indication  of more than one fire-arm  having  been used at the incident.  Thus, for instance., Bisheshwar, P.W. 2,  said "I heard 3 or 4 guns being fired outside  and  also heard a noise".  P.W. 4., Ram Bhawan, said "We four  persons threw  lumps of earth from the well at the accused  persons, the     accused    retired    and    fired     their     gun twice................  ........ The accused had fired a  gun from  the door of Mabadeo when going away, then,  bad  fired two or three guns from his door".  P.W. 5, Gaya Prasad, said "Two  or three guns afterwards had been fired from the  door of Mahadeo Pandit.  Those guns had been fired from the lane. The guns had been fired at the door of Ram Saran and had bit it".  All these witnesses no doubt assert that so far as the particular  injuries with which this case is  concerned  the firing was by the appellant Suraj Pal.  But the above state- ments  by these witnesses in the cross-examination may  well indicate  that  there  may have been other  persons  in  the unlawful assembly at that time with arms in their hands, who made  use of them by firing.  Apart from the use of  pistols in  the course of that incident, by one party or the  other, there  are clear indications that there was a  mutual  fight between both the parties.  Two of the persons on the side of the  accused, viz.  Lal Pratap and Chedi Lal  have  received some injuries and their injury certificates have 172 1344 been marked as Exs.  D-1 and D-2.  The prosecution witnesses themselves  admit  that there was mutual  fighting  to  this extent,  viz. that there was also throwing of  brickbats  by the  complainant’s  party against the rioters.   As  already stated  there is in fact a counter case against some of  the present  prosecution  witnesses  in  respect  of  the   same incident.   In such a situation any further trial is  likely to  result  only in very doubtful  and  unreliable  evidence being  adduced after a considerable lapse of time.  Even  as it  is, the evidence recorded in the present case  has  been found by the High Court in its judgment as not acceptable at its  face  value.  The learned Judges have dealt  with  this aspect  at length and they wound up their  consideration  of this part of the case as follows: "For the above reasons, I am of opinion that there is a good deal  of  substance  in this part of the  arguments  of  the appellants’ counsel.  The question that would arise is as to which of the particular accused is guilty and what should be the  criterion  for deciding this matter.  In  view  of  the biassed and interested nature of the prosecution evidence, I am of opinion that the presence of only those accused should be  held  to  have been proved who have  been  assigned  any definite  part  by  the  prosecution  witnesses  or   ,whose presence  is  corroborated  by  some  other   circumstantial evidence.   In view of the highly interested nature  of  the prosecution  evidence, dealing with the first aspect of  the case  also, viz. the question as to how far the  prosecution have  succeeded in proving the manner in which the  incident occurred, 1 have not accepted the prosecution case unless it



found   corroboration   from   some  other   factor   of   a circumstantial nature or from probabilities of the case". It  is  by  reference  to these  standards  that  they  have rejected the evidence of the prosecution witnesses in so far as  they  implicated ten other accused whom the  High  Court acquitted.   But it appears to us, that judged by  the  very same standards there is no adequate reason for accepting the evidence  as  being reliable in respect  of  this  appellant also.  In fact there is good reason to feel that on the same standards this appel-                             1345 lant also should have got the benefit of the doubt.  At this stage,  it  is  not out of place to mention  one  fact.   It appears from the evidence of the Investigating Officer, P.W. 14, that in the course of the investigation the  prosecuting authorities were of the opinion that the murder in this case was to be attributed to the prosecution witness, Ram Bhawan, P.W.  4,  and not to the appellant, and that in  their  view even  the evidence as against Ram Bhawan was not  sufficient to  put  him  on trial for the murder.   Doubtless  such  an opinion  of the prosecuting authorities has no relevancy  in the  case and should not have been placed on the  record  in this case.  But when we have to consider the desirability or otherwise  of  retrial, we need not shut our eyes  to  these features of the case which have been brought on the  record. In the circumstances mentioned above we do not consider that the interests of justice require that any retrial should  be ordered.   We  accordingly  direct that there  shall  be  no retrial. In  the  result,  the convictions  of  the  appellant  under sections  307  and  302 of the Indian  Penal  Code  and  the sentences therefor are hereby set aside.  But his conviction under section 148 of the Indian Penal Code is maintained  as also  the  sentence  of  two years and  a  half  in  respect thereof.   This appeal is accordingly allowed  partially  to the extent indicated above. Appeal partially allowed.