M.K. Mukharji and; K.T. Thomas, JJ.
1. Thirteen persons were arraigned before the Additional Sessions Judge, Pandharpur for rioting, murder and other cognate offences. On conclusion of the trial the trial Judge convicted four of them (A-1, A-8, A-12 and A-13) under Sections 302/34 IPC and the other nine under Sections 304 (Part II)/34 IPC. Besides two of them (A-5 and A-10) were convicted under Sections 325/34 IPC and eight others under Sections 323/34 IPC. In appeals preferred by them the High Court acquitted two of them (A-5 and A-10) while maintaining the convictions and sentences of the others. Assailing the judgment of the High Court the convicts filed two special leave petitions in this Court, one of which was filed by A-1, A-8, A-12 and A-13 and the other by the seven other convicts. While refusing leave to the former group of convicts this Court granted leave to appeal to the latter.
2. In distinguishing the case of the seven appellants from that of the other four convicts regarding the common charge framed against them under Sections 302/34 IPC for the murder of Sankonda Birajdar, the trial court observed that though the appellants did not participate in the murder and were only present at the spot, still it could be presumed that they had knowledge that due to their acts some of them could cause the death. It further observed that they (appellants) had knowledge that they were likely to cause injuries which could cause death. Accordingly, the trial court convicted the appellants under Sections 304(II)/34 IPC and the four others, who actually caused the murder under Sections 302/34 IPC. In recording the above finding against the appellants the trial court relied upon the judgment of this Court in Mer Dhana Sida v. State of Gujarat1. In upholding the conviction of the appellants under Sections 304(II)/34 IPC the High Court however did not advert to this aspect of the matter.
3. In our considered view the above reasoning of the trial court to convict the appellants under Sections 304(II)/34 IPC is patently wrong. Before a person can be convicted with the aid of Section 34 IPC the ingredients that are required to be satisfied are that he along with others committed a criminal act and that such act was done in furtherance of the common intention of them all. On the own showing of the trial court the appellants were merely standing when the act of murder was committed by the other four. Indeed no evidence was laid by the prosecution to prove that any of the appellants committed any criminal act which resulted in the death of the victim. The reliance of the trial court on Mer Dhana Sida1 was wholly misplaced for in that case the persons who were convicted under Sections 304(II)/34 IPC committed a criminal act, in that, they assaulted the deceased. While on this point, it is pertinent to mention that consequent upon their acquittal of the offence of rioting the question whether the appellants can be convicted with the aid of Section 149 IPC for the above death does not arise.
4. For the foregoing discussion the conviction of the appellants under Sections 304(II)/34 IPC cannot be sustained. We do not, however, find any such infirmity in the conviction of some of the appellants under Sections 323/34 IPC as their participation in the assaults on one of the prosecution witnesses stands fully established. We, therefore, allow the appeal in part by setting aside the conviction and sentence of the appellants under Sections 304(II)/34 IPC, while maintaining the conviction and sentence for the offence under Sections 323/34 IPC. Since those of the appellants, who have been convicted for the above offence, have already served out the sentence imposed for the above conviction we direct that all the appellants be released forthwith.