Before an accused can be convicted of an offence under Section 326 read with Section 34 of the Indian Penal Code, it must be established that some specified person, whose intention the accused shared, committed the act resulting in causing grievous hurt.

1. Three accused persons including the present appellant, who was accused No. 1 in the Court below, were tried before the Additional Sessions Judge, Kolhapur, for an offence of murder of one Bapu Tukaram Patil, the charge against the three accused persons being that on or about 18-9-1955, in Shaha-pur village they and one Shankar Nalavade, since absconding, in furtherance of a common intention of all intentionally caused the death of Bapu Tukaram Patil of Kodoli and thereby committed an offence punishable under section 302 read with Section 34, Indian Penal Code. At the trial, the learned Judge acquitted Nos. 2 and 3, hut convicted accused No. 1 under section 326 read with section 34 and sentenced him to suffer rigorous imprisonment for a period of two years. Accused No. 1 now appeals from his conviction and the sentence imposed upon him.

2. The order of conviction runs as follows:

"In the result, I acquit accused No. 1 of the charge under Section 302 but convict him under Section 326 read with Section 34 of the Indian Penal Code and sentence him to undergo rigorous imprisonment for two years. Accused Nos. 2 and 3 are acquitted of the charge and they are set at liberty".

Now, the charge against the three persons including the present appellant was a charge of murder of Bapu. The prosecution case against accused No. 1 was that on 18-9-1955 accused Nos. 1 and 2 and one Shankar Nalavade hid themselves in a streamlet they asked accused No. 1 to post himself in such a way that when Bapu passed by the road, accused No. 1 should give a signal to accused Nos. 2 and 3 anil Shankar. In this case, the prosecution relied neon several pieces of evidence. Reliance was placed upon the evidence of one Shantabai, which was the direct testimony in the case. Reliance was placed upon the evidence of motive, the motive being that the deceased was acting as an attorney of one Balkabai who was disputing certain transactions of gift made in favour of accused Nos. 1 and 2. Reliance was then placed upon dying declarations and also upon a confessional statement made by accused No. 1 which was subsequently retracted by him.

Lastly, reliance was placed upon circumstantial evidence and that was that although the offence took place on 18-9-1955, the first accused was not to be found in the village and was absconding unit 25-9-1955. The evidence of motive is not, by itself, enough to convict an accused person of a serious offence of murder. Shantabais evidence was rejected on the ground that she did not mention the assailants who took part in the assault upon Bapu. As regards the dying declarations, it was recognised that the declarations constituted a weak piece of evidence and without corroboration, it would not be safe to act upon them. With regard to the confessional statement, the learned Additional Sessions Judge took the view that there was enough corroboration to the confessional statement. It may be pointed out that the confessional statement was retracted and in order to rely upon a confessional statement which is retracted, it must be proved that the confessional statement is a voluntary statement and a true statement. So far as the circumstantial evidence in the case is concerned, that evidence is not, by itself, sufficient to convict an accused person charged with a serious offence of murder.

3. On this appeal by accused No. 1, what one has to consider is, therefore, the evidence furnished by the dying declarations and the confessional statement. Now, if the dying declarations require corroboration, surely they constitute a weak piece of evidence and if a confessional statement is retracted, one has to find corroboration before it is acted upon. The result is that both the dying declarations as well us the retracted confessional statement constitute such pieces of evidence that one piece of evidence cannot corroborate another. To find out corroboration, there must be some independent evidence.

4. According to the confessional statement, acc