JUDGMENT

Thomas, J.-For the murder of a Gram Sarpanch the sessions court which tried the case convicted 6 persons for various offences including criminal conspiracy to commit the said murder. But a Division Bench of the Andhra Pradesh High Court, on appeal filed by the convicted persons, acquitted most of them and even regarding the two who were found guilty the High Court has chosen to convict them only of the offence under Section 326 of the Indian Penal Code. They were sentenced to undergo RI for 7 years. Hence they have appealed before us by special leave. The son of the deceased filed a separate appeal by special leave challenging the judgment of the High Court in so far as it is favourable to the accused. The State of Andhra Pradesh has also filed an appeal for restoring the conviction and sentence passed by the trial Court. We heard all the appeals together.

2. The incident happened on the night of 18.1.1993, on a public road. Prosecution case is that the deceased Sitaram Anjanalelu, the Gram Sarpanch, was proceeding to the house of his daughter Sujatha (who is married to A.K. Rao). The time was around 11.00 P.M. when the deceased reached almost near that house. Then 5 accused (all except A-4 Shashiah) jumped out from ambush, and waylaid the deceased. After surrounding him the accused showered him with blows by using axe, knife and similar lethal weapons. The victim died at the spot after sustaining extensive injuries.

3. The background for the said occurrence, as pictured by the prosecution, is that the deceased was a Congress leader and 4th accused Shashiah belonged to CPI and as between them there were enough causes for rivalry including an election which was held to the Board of Directors of a Co-operative Society in which a panel set up by the deceased had trounced the candidate set up by the 4th accused. The newly elected Board of Directors initiated proceedings against the 4th accused (who held the office of President of the same society earlier) for misappropriation of the funds of the society. Thereupon 4th accused entered into a conspiracy with other accused for liquidating the deceased Sitaram Anjanalelu. Accused 1, 2 and 3 are the sons of 4th accused and accused Lal Bahadur is his nephew.

4. PW 1 (Pattabhi Narendra) is the son of the deceased. He lodged a complaint in writing with the police on the same night in which he said that he was walking a few yards behind his father and witnessed the incident in which all the accused (including the 4th accused Shashiah) launched the attack on his father. But the investigating officer came to understand that A-4 was interned in a jail on the previous day in connection with some other case, and therefore, it was impossible for him to be present at the scene of occurrence. So the investigating officer charge-sheeted the remaining accused mentioned in the complaint for the offence under Section 302 read with Section 149 of the Indian Penal Code. Nonetheless, A-4 was also arraigned as an accused on the allegation that he had hatched a criminal conspiracy with the other accused to finish the deceased off.

5. Dr. J. Krishnamurthy (PW 10) conducted the autopsy on the dead body of the deceased. He noticed 17 incised injuries out of which 10 were on the head, 3 injuries among them were the most serious injuries and the brain of the deceased was lacerated.

6. At the outset, we have to point out that the Division Bench of the High Court has committed a serious error in holding that the offence proved as against A-1 and A-3 is only under Section 326 of the Indian Penal Code. The assailants, who had participated in the occurrence in which deceased was killed so brutally, cannot escape from conviction under Section 302 at least with the help of Section 34, if not with Section 149 of the Indian Penal Code. The conviction of the assailant or assailants who inflicted grievous injuries which resulted in the death of the victim cannot be limited to Section 326 of the Indian Penal Code.

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