A person cannot be convicted under Section 302 read with Section 34 IPC for murder when the other accused charged with the same offense are acquitted.

Judgment

SUBBA RAO, J. : This appeal by special leave is directed against the judgment of a Division Bench of the Bombay High Court setting aside the order of acquittal made by the Additional Sessions Judge, Kolaba, and convicting the appellant under Section 302, read with Section 34 of the Indian Penal Code and sentencing him to imprisonment for life.

2. The case of the prosecution may be briefly stated. In the year 1959, two persons by name Ramachandra Budhya and Govind Dhaya were murdered by some people. In all 11 accused, including one Deoram Maruti Patil, were brought to trial; and out of them 8 accused, including the said Deoram Maruti Patil, were acquitted. During that trial Deoram Maruti Patil s uncle, by name Vishwanath, actively helped Deoram Maruti Patil in the conduct of his defence. Accused 1 and 2 in the present case are the sons of Govind Dhaya and accused 3 and 4 are the nephews of Ramachandra Budhya. They bore a grudge against Vishwanath for helping Deoram Maruti Patil and bringing about his acquittal. on August 19, 1960, Vishwanath and one Mahadeo Pandu Patil left their village at about 8.30 p.m. in. order to go to Pezari enroute to Alibag. When they were walking along a bound, accused 1 to 4 came from behind, armed with long sticks and the stick carried by accused 1 had a blade attached to it. They belaboured the deceased resulting in his death.

3. The four accused had to stand their trial for the murder of Vishwanath before the Court of the additional Sessions Judge, Kolaba. The charge against them was that they, in view of their common grudge against the deceased, combined together and did away with the deceased. The said four persons were charged under S. 302, read with S. 34, of the Indian Penal Code for committing the murder of the deceased in furtherance of their common intention. All of them were also charged separately for the substantive offence under S. 302 of the Indian Penal Code. All the accused pleaded not guilty to the charge. While accused 1, 3 and 4 pleaded alibi, accused 2 raised a plea of private defence. The prosecution examined eye-witnesses, who deposed that the four accused overtook the deceased when he was going to village Pezari and felled him down by giving him lathi blows. None of the witnesses spoke to the presence of any other person, named or unnamed, who took part in the assault of the deceased. The learned Additional Sessions Judge found that the prosecution witnesses were not speaking the truth and that the version seven by accused 2 was the probable one. In the result he acquitted all the accused.

4. The State preferred an appeal to the High Court against the said order of acquittal under Section 302, read with Section 34, of the Indian Penal Code; but no appeal was preferred against the order of acquittal under Section 302 of the Indian Penal Code. The judgment of the High Court discloses that the learned Judge. were inclined to believe the evidence of the witnesses, other than Kashinath and Shridhar. But they dismissed the appeal against accused 1, 3 and 4 on the ground that the appeal was against an order of acquittal. But in regard to accused 2, they held that he was one of the participants in the assault and there was no basis for his plea of private defence. Having come to that conclusion, the learned Judges convicted accused 2 under Section 302, read with Section 34, of the Indian Penal Code. As regards the persons who participated in the assault along with accused 2, it would be appropriate to quote the words of the High Court itself :

"Some of the other accused were undoubtedly concerned with the incident along with accused No. 2. Since it is possible that the story as given by the prosecution witnesses, and particularly by Mahadeo, was exaggerated, it is not safe to hold that each one of the other accused was also a participant in the offence. In view of the possibility that one or more of the other accused, i.e., accused Nos. 1, 3 and 4, might not have participated in