SANGAM LAL Vs. STATE OF U P

JUDGEMENT

(1.) Heard learned counsel for the parties.

(2.) The appellant and accused-Ghanshyam were charged under Section 302 read with section 34 of the Indian Penal Code [for short, i. P. C. '] and by judgment rendered by trial court, accused-Ghanshyam was acquitted, whereas the appellant was convicted under Section 302 i. P. C. On appeal being preferred, the conviction of the appellant was upheld. Hence, this appeal by special leave.

(3.) As this appeal has got to be allowed on a short question, it is not necessary to state the facts. According to the evidence the appellant and accused-Ghanshyam both were responsible for causing the death of victim manorama Devi. According to the charge, both the accused persons had common intention to commit the murder of Manorama Devi by inflicting Gandasa injuries upon her. Neither it is the prosecution case nor there is any evidence to show that it is the appellant who alone assaulted the deceased or he gave the fatal blow. In view of this, the appellant could not have been convicted under Section 302 IPC simplicitor but could have been convicted only with the aid of Section 34 IPC for having shared the common intention with other accused person and in view of the fact that the other accused person had been already acquitted and there being no third person either according to the prosecution case or evidence, we are of the view that the appellant cannot be convicted under Section 302 read with Section 34 I. P. C. For the foregoing reasons, we are of the view that the High Court was not justified in upholding conviction of the appellant.