Dilip vs State of Maharashtra

B.N. Agrawal and H.K. Sema, JJ.—Heard learned Counsel for the parties.

The Appellant and six other accused persons were tried and by judgment rendered by the trial court, other six persons were acquitted of all the charges whereas the Appellant was convicted u/s 302 as well as Section 302/149 and sentenced to undergo imprisonment for life and to pay a fine of Rs. 5,000, in default, to undergo imprisonment for a period of two years. He was further convicted under Sections 147 and 148 of the Penal Code and sentenced to undergo rigorous imprisonment for a period of six months and one year respectively. All the sentences were, however, ordered to run concurrently.

The Appellant preferred an appeal against his convictions whereas the State preferred an appeal against the acquittal of accused Dinesh and no appeal challenging the order of acquittal of other accused persons was preferred in the High Court. The High Court of Bombay upheld convictions of the Appellant as well as acquittal of accused Dinesh. Hence, this appeal by special leave by the Appellant challenging the judgment of the High Court whereby his convictions have been upheld.

According to the prosecution case and the evidence, there were seven accused persons and there was no eighth accused person either known or unknown who could have complicity with the crime. Out of seven accused persons, six have been already acquitted and their order of acquittal attained finality, the same having not been challenged before this Court. Thus, the question which remains to be examined in this appeal is as to whether conviction of the Appellant u/s 302 of the Penal Code can be upheld and as to whether the Appellant can be said to be author of the fatal injuries. The deceased is said to have received 14 injuries in all, out of which Injuries 1 and 2, which were on the chest, were fatal. So far as the Appellant is concerned, in the first information report, it was simply stated that he inflicted injury with knife but it was nowhere stated as to on which part of the body, the Appellant inflicted injury. So far as P. Ws. 2 and 6, who are eye-witnesses in the case are concerned, they have made categorical statement in Court that the Appellant assaulted the deceased with knife on the shoulder. They have nowhere stated that the Appellant assaulted the deceased on the chest. Injuries on the shoulder are Injuries 7 and 8 which, in the opinion of the doctor, were not fatal.

From these facts, it becomes plain that the Appellant cannot be held responsible for causing the fatal injury, as such, his conviction u/s 302 of the Penal Code becomes unwarranted. Question now arises as to whether, he could be convicted u/s 302 with the aid of either Section 34 or Section 149 of the Penal Code. In view of the fact that other six accused persons have been already acquitted, the Appellant cannot be convicted u/s 302 read with Section 34 of the Penal Code as there was no other accused persons with whom the Appellant could share the common intention to murder the victim. He also cannot be convicted under Sections 302/149, 147 and 148 of the Penal Code as in view of acquittal of all other accused persons, it cannot be said that the Appellant was member of any unlawful assembly, the common object of which could be to commit murder of the victim. This being the position, we are of the opinion that the High Court was not justified in upholding convictions of the Appellant.

Accordingly, the appeal is allowed, convictions and sentences of the Appellant are set aside and he is acquitted of all the charges. The Appellant, who is in custody is directed to be released forthwith, if not required in connection with any other case.