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1974 Supreme(Bom) 126
IN THE HIGH COURT OF BOMBAY
(V.S. Deshpande and B.A. Masodkar JJ.)
LAXMAN HARIBHAU MAHAKAL - Appellant
Versus
STATE OF MAHARASHTRA - Respondent
Advocates appeared
For appellant - V.R. Manohar and D.D. Pingley,
For State- V.P. Salve.
The acquittal of co-accused in a murder case does not preclude the conviction of another accused under section 302 read with section 34 IPC, if the court is satisfied that the murder was committed by more than one person and that the convicted accused participated in the crime.
Headnote:
CRIMINAL LAW - MURDER - SECTION 302 READ WITH SECTION 34 INDIAN PENAL CODE - CONVICTION OF APPELLANT - ACQUITTAL OF CO-ACCUSED - VICARIOUS LIABILITY - APPLICABILITY.
Fact of the Case:
The appellant was convicted of murder under section 302 read with section 34 of the Indian Penal Code (IPC) for his role in the murder of Nago. The prosecution's case was that the appellant, along with five other co-accused, had conspired to kill Nago and had carried out the plan by attacking him with sticks and stones. The appellant confessed to his involvement in the murder, but the other co-accused were acquitted due to lack of sufficient evidence.
Finding of the Court:
The court found that the appellant had participated in the murder of Nago along with four other unidentified persons. The court held that the appellant was vicariously liable for the murder under section 302 read with section 34 IPC, even though the other co-accused had been acquitted.
Issues: 1. Whether the appellant could be convicted of murder under section 302 read with section 34 IPC, despite the acquittal of the other co-accused. 2. Whether the appellant could be held vicariously liable for the murder, even though it was not possible to determine the identity of the other participants.
Ratio Decidendi: 1. The court held that the conviction of the appellant under section 302 read with section 34 IPC was legal, even though the other co-accused had been acquitted. The court reasoned that the acquittal of the other co-accused did not negate the fact that the murder had been committed by more than one person. The court further held that the appellant could be held vicariously liable for the murder, even though it was not possible to determine the identity of the other participants. 2. The court distinguished the present case from Krishna Patil v. State of Maharashtra, where the Supreme Court had acquitted the appellant of murder under section 302 read with section 34 IPC, despite his confession, because the High Court had found that some of the acquitted co-accused were 'undoubtedly' present at the scene of the crime. The court held that, in the present case, there was no such finding by the trial court, and therefore, the appellant's conviction was not vitiated by any inconsistency.
Final Decision: The court dismissed the appellant's appeal and upheld his conviction for murder under section 302 read with section 34 IPC.
DESHPANDE J.-From all this, it can be safely concluded that, (1) the appellant was directed to put an end to the life of Nago, who was in turn to accompany him on the loaded tractor from Rohana to Karanja; (2) on his pleading inability to do it alone, he was assured of the assistance of others; (3) he and the deceased left together in the tractor with other four co-employees and one Kondabai, who also wanted lift upto Karanja ; (4) the deceased was as suited to death by himself and four others by sticks and stones in S. No. 25 near Bheda tree; (5) Kondabai was also done to death to prevent disclosure and (6) the two dead bodies were dropped on Manora-Mangrulpir road near Sakhardoh on his way to Mangrulpir and Karanja.
2. Murder, at any rate of Nago is thus proved to be the outcome of previous concert between six persons and conjoint action of five persons including the appellant, in pursuance of their common intention. This evidence does not permit fixation of any individual liability for any particular blow or injury. The appellant is proved to have given stone blow to Nago. But it is not possible to hold him liable for any of the three fatal or four simple injuries. He can, however, be held vicariously liable for the conjoint attack under section 302 read with section 34 Indian Penal Code.
3. Confessional statement no doubt mentions the names of the instigator and the other four collaborators. Conviction of the appellant undoubtedly is being based on our finding that the confession is true and voluntary. Even so, there is no other sufficient legal evidence against the other co-accused and this necessitated their acquittal. This inevitably introduces an element of inconsistency, if not of uncertainty, appellant being convicted on the hypothesis that the persons named did instigate and collaborate and yet acquitting the very same persons on such instigation and collaboration having remained legally unproved. Such apparent inconsistency, however, is never considered to be legal impediment in the way of the conviction of the maker of the confession in all cases depending essentially on confessions. Such inconsistency on the other hand is judicially accepted as an indispendable procedural safeguard under the rules of evidence. Convicted accused is always deemed to have conjointly acted with legally unidentified persons, notwithstanding the acquittal of the named other accused for want of additional legal evidence.
4. Mr. Manohar contends that with the acquittal of all but the appellant, his conviction for the offence under section 302 read with section 34 Indian Penal Code is not legal, as the appellant cannot be said to have shared the common intention with anyone else to warrant his vicarious liability. Reliance is placed on the decisions of Krishna Patil v. State of Maharashtra1; Baul v. State of U.P.2; Ram Tahal v. State of U. P.3 and B. Nath v. State of Orissa4 and also in Prabhu Dayal v. State of U. P.5.
5. Now it is true that the conviction of any person or persons under section 302 read with section 34 Indian Penal Code assumes that perpetrators of the crime were more than one, and all of them acted (1) conjointly (2) after some prior concert (3) and in execution of their common intention. With the acquittal of all but one such alleged perpetrators, possibility of any conjoint action in pursuance of any prior concert and common intention is liable to be eliminated. The person sought to be convicted cannot be said to have shared the common intention, or acted in concert, with anyone, and cannot conceivably be held vicariously liable for the fatal blow by any supposed perpetrator. In all such contingencies one such person can be held liable only for his individual act or omission, if the same is capable of being determined or else he also is liable to be acquitted notwithstanding the proof of his unspecified participation. Conviction in such a case introduces inconsistency in as much the conviction assumes his part
