Judgement

BOSE J. (On behalf of himself and S. R. Das Actg. C. J.) : This appeal was referred to a Bench of Five Judges in order to determine whether there was a conflict of view between - Nanakchand v. State of Punjab , (S) AIR 1955 SC 274 (A) and - Surajpal v. State of U.P., AIR 1955 SC 419 (B) and if so, to determine it.

2. The appeal is against a conviction for murder in which the lesser sentence was given. The main ground is that the appellant was charged under section 302 of the Indian Penal Code read with section 34. His co-accused was acquitted, so, it was urged, the element of common intention drops out and accordingly section 34 cannot be called in aid. But the Courts below hold that the appellant inflicted the fatal blow and have made him directly liable for the murder.

He contends that as he was not charged with having murdered the man personally he cannot be convicted under section 302. He relies on certain observations in (S) AIR 1955 SC 274 (A) and contends that the conviction is an illegality which cannot be cured and claims that he must either be acquitted or, at the most, be retried, though he adds further that in the circumstances of this case the Court should not