Zingaraji Vs. State of Maharashtra  INSC 664 (13 August 1997)
MUKHERJEE, D.P. WADHWA
13TH DAY OF AUGUST,1997 Present:
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 :
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.
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.
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 murder, as offence punishable under Section 302 of
I.P.C. read with Section 149 I.P.C.
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.
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.
and affirming the acquittal of the eight others. Hence this statutory appeal at
the instance of the appellant.
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.
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.
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.
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.
either of the above situations therefore the sole convict can be convicted
under Section 302 I.P.C.
only on proof of the fact that his individual act caused the death of the
victim. To put it differently, 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:
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).
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.
appeal is, thus, disposed of.