Umesh Charan Gosain vs State

J.C.S. Rawat, J.—This is a criminal appeal against the judgment and order dated 10.2.2004 passed by the then Addl. Sessions Judge/Fast Track Court, Tehri Garhwal in Sessions Trial No. 7 of 1996, State v. Umesh Charan Gusain, whereby the Addl. Sessions Judge has convicted the appellant under section 436, I.P.C. and sentenced him to undergo RI for three years and to pay fine of rupees ten thousand. In default of payment of fine, the appellant shall further undergo RI for three months.

The case of the prosecution, in brief, is that on 3.10.1994 at about 14.15 p.m. the Uttarakhand Sangharsh Samiti agitators tried to burn the unoccupied residential house of the District Judge, Old Tehri. It is also pertinent to mention here that the District Judge was not residing in the said house, since he had shifted to his new residence at New Tehri. When the S.D.M. came to know of the above incident, he immediately reached at the residence and made arrangements to extinguish the fire. The said information was given to the police station Tehri and a report was also lodged. Again on 4.10.1994, the agitators came at the unoccupied residential house of the District Judge, Old Tehri and set the house on fire. A report to this effect was also lodged by S.D.M. on phone to the police station. The prosecution case further reflects from the evidence that the accusedappellant along with other persons came to the Court room of the District Judge, New Tehri on 27.9.1994, when the District Judge, New Tehri was hearing a civil case bearing No. LA 2 of 1988, Sliashi Bhusan v. State. During the course of the proceeding, the accusedappellant appeared before the District Judge and stated that he is the president of the Students'' Union. The accusedappellant requested the District Judge to handover his old residence situated at Old Tehri to the students. The learned District Judge unequivocally stated that the property belongs to the High Court, hence shown his inability to provide the same to the students. The accusedappellant alongwith the another companions came out of the Courtroom and stated in an intimidated manner that if the residence is not provided to them, they will see other methods to get the same. The prosecution has further alleged that on 4.10.1994, constables Suresh Chand PW8 and Ombir Singh PW 10 were on the security duty at the residence of the District Judge, Old Tehri. At about 12 noon, they saw that a procession of about 150 persons were coming from the side of the Ghantaghar to the unoccupied residence of the District Judge, situated at Old Tehri. The said procession was being headed by its leader Umesh Charan Gusain, the present appellant. The persons who were in the procession, have bottles, canes and ''mashals'' in their hands. They reached near the unoccupied residence of the District Judge, Old Tehri shouting slogans that if the said residence could not be provided to the students, then the District Judge would also not be allowed to retain this house. The eyewitnesses Suresh Chand PW8 and Ombir Singh PW 10 tried to intervene but the persons who were in the procession, started pelting stones upon them. Consequently, the eyewitnesses left the spot and the miscreants set the Bungalow/residence on fire by throwing bottles filled with some liquids and ''mashalas''. The eyewitnesses constables Suresh Chand PW8 and Ombir Singh PW 10 immediately went to the house of the S.D.M. which is situated nearby the place of the unoccupied residence of the District Judge, but the S.D.M. had gone at the post office at that time. Thereafter, both the eyewitnesses went to the post office and narrated the entire incident to the S.D.M. The S.D.M. lodged a report in regard to the above incident on telephone in the police station at about 14.15 p.m. on the same day. The matter was initially investigated by the regular police and a chargesheet was submitted by the police against thirteen persons, including the present appellant.

It is pertinent to mention here that during the above proceeding, a writ petition bearing No. 32982/1994 was instituted by the Uttarakhand Sangharsh Samiti before the Allahabad High Court in which the Court ordered that the matters pertaining to the atrocities committed on the volunteers of ''Uttarakhand Sangharsh Samiti'' would be investigated by the C.B.I, and separate Courts would be set up for the trial of such cases. Pursuant to the said order of the Division Bench of the Allahabad High Court, investigation was taken up by the CBI, Kishore Kumar, the Deputy Superintendent of Police, I.O., CBI pursuant to the order of the Allahabad High Court, filed an application before the C.J.M. Tehri on 5.5.1995 (i.e. Ex. Ka 18) seeking permission to investigate the case and also for getting the original documents/certified copies of the documents filed by the local police in the Court pertaining to the above matter. After completion of the investigation by the CBI, chargesheet was submitted against the present appellant only, before the Court on 4.10.1995 (Ex. Ka 33). Consequent under the orders of the High Court, the matter was tried/heard before a CBI Court, specially constituted under the orders of the Allahabad High Court passed in the Civil Miscellaneous Writ Petition No. 32982 of 1994. Meanwhile, an appeal was preferred by the State (U.P.) before the Hon''ble Apex Court against the final judgment and order of the Allahabad High Court in the Civil Miscellaneous Writ Petition No. 32982 of 1994. The Hon''ble Apex Court in the appeal preferred by the State (U.P.), set aside the order of the Allahabad High Court passed in the Civil Miscellaneous Writ Petition No. 32982 of 1994 in toto and, the direction by the High Court for the establishment of the separate Courts was also not allowed to remain in force, on the ground that if such Courts are allowed to remain in force, it would create only confusion and provide room for precasting of the trials. For the ready reference, the said judgment of the Hon''ble Apex Court is in the case of A.K. Singh and others v. Uttarakhand ]an Morcha and others, 1999 (39) ACC 262 (SC). After the quashment of the judgment of the Allahabad High Court by the Hon''ble Apex Court, the CBI moved an application before the Court concerned to remit the case to the Sessions Judge having the jurisdiction for the trial of the case. The said application was allowed by Allahabad High Court and the matter was remitted to the Sessions Judge, Tehri which was later on transferred to Addl. Sessions Judge, Tehri who was having the jurisdiction over the matter under the provisions of the Criminal Procedure Code.

After submission of the chargesheet by the C.B.I., the accusedappellant was committed to the Court of Sessions Judge, Tehri Garhwal for trial and the Trial Court framed charge against the accusedappellant. The accusedappellant denied the charge levelled against him and claimed trial.

At the time of trial, the prosecution in support of its case examined 11 witnesses in support of its case. They are namely, Soban Singh Kaithat PW1, Jasmal Singh PW2, Trilok Singh Bisht PW3, Sampoornanand Nautiyal (fireman) PW4, Dr. Akhilesh Kumar Gautam PW 5, Rajendra Singh Bisht PW6, Karam Jung Singh Chauhan PW 7, Const. Suresh Chand PW 8, H.C. Pyare lal PW9, Const. Ombir Singh PW 10 and Kishore Kumar PW 11. Soban Singh Kaithat PW1, Tirlok Singh Bisht PW 3 and Karam Jung Singh Chauhan PW 7 are the witnesses to the fact that the accusedappellant alongwith his companions appeared before the Court on 27.9.1994, when the District Judge, New Tehri was hearing a civil case bearing No. LA 2 of 1988, Shashi Bhushan v. State and during the course of the proceeding, the accusedappellant requested the District Judge to hand over his old residence situated at Old Tehri to the students. The learned District Judge unequivocally stated that the property belongs to the High Court, hence shown his inability to provide the same to the students. The accusedappellant alongwith his another companions came out of the Court room and stated in an intimidated manner that if the residence is not provided to them, they will see other methods to get the same. The prosecution has led the evidence of these witnesses i.e. Soban Singh Kaithat PW.1, Trilok Singh Bisht PW 3 and Karam Jung Singh Chauhan PW 7 to show the motive of causing the mischief by setting the fire to the vacant residence of the District Judge, Constable Suresh PW8 and Ombir Singh PW 10 are the witnesses of the fact of the incident. Sampoornanand Nautiyal (fireman) PW 4 is the incharge of the fire station. He has received the information from the police station, Tehri on 4.10.1994 to take the fire brigade to the place of incident to extinguish the fire. On receiving the said information, Sampoornanand PW 4 alongwith other fire personnel reached the place of incident and extinguished the fire. PW 5 is Dr. Akhilesh Kumar Gautam and he has stated that on 4.10.1994, his driver came to him and took petrol from him stating that he had to take a patient by some other vehicle. PW 6 is Rajendra Singh Bisht SSI who was posted on the date of the incident at SP Office as ASI. He is a formal witness. H.C. Pyare lal PW 9 is the Head Moharir who has recorded the F.I.R. and he is also a formal witness and Kishore Kumar PW 11 is the Investigating Officer of this case.

The accusedappellant was examined under section 313 of the Criminal Procedure Code. He denied all the averments made in the evidence and he has stated that he has been falsely implicated in the case. He has also stated that neither he had gone to the house of the District Judge nor he set the fire to the house of the District Judge, He further stated that he has been falsely implicated in the case, as he was a student leader at that time. The accusedappellant did not adduce any evidence either oral or documentary in support of this case.

After appreciation of the evidence, the learned Sessions Judge convicted the accusedappellant under section 436, I.P.C. as indicated above, but was acquitted for the incident dated 3.10.1994 and from the chargelevelled under section 436 read with 511, I.P.C. for the same.

I have heard the learned Counsel for the parties and perused the record.

It needs to be mentioned here that it is not disputed that the District Judge had shifted from his old residence situated at Old Tehri to New Tehri residence. It is also not disputed that the said house of District Judge situated at Old Tehri was burnt to ashes at the time and date of the incident. It is also not disputed that some miscreants came at the residence of the District Judge, Old Tehri and set the residence on fire. Thus, there is no hesitation in holding that the residence of the District Judge situated at Old Tehri was burnt to ashes at the time and date of the incident.

It is also pertinent to mention here that an application dated 9.3.1995 for withdrawal of the prosecution was filed before the Trial Court. The said application was not pressed either by the prosecutor appearing before the Court, or by the appellant and the case was decided against the appellant and he was convicted as indicated above.

During the pendency of the present appeal, the State Government vide order dated 21st February, 2004 has remitted the sentence awarded by the Trial Court. Thus, the sentence awarded by the Trial Court has already been remitted by the State Government under its power conferred under the Criminal Procedure Code. This fact has not been disputed by any of the parties appearing before the Court. Now, the academic question which remains for consideration is as to whether the appellant is guilty of the offence under section 436 or under any other sections of IPC. If he is found guilty under section 436, even then he cannot be ordered to suffer imprisonment as ordered by the Court, as the State Government in its exercise of the power, has remitted the said sentence.

Now I have to see as to whether the appellant was the person who was responsible for causing the said mischief by setting the residence on fire or not. The case rests upon the eyeaccount of Suresh Chand PW 8 and Ombir Singh PW 10. The prosecution has also led the evidence to prove the fact that there was a motive of the accusedappellant to commit the said mischief. The prosecution in support of its case examined Suresh Chand PW 8 who has stated in his evidence that he was on the security duty on 4.10.1994 from 9 am to the mid day, at the residence of District Judge, Old Tehri and at about 12 noon, the volunteers of the Uttarakhand Sangharsh Samiti hold a procession and were coming towards the residence of the District Judge situated at Old Tehri. The said procession which was having about 100150 persons were coming from the side of Ghantaghar to the residence of the District Judge situated at Old Tehri. The said procession was alleged to have been headed by the accusedappellant Umesh Charan Gusain. They were having the plastic jarcanes, bottles and ''mashals'' in their hands. The agitators reached at the residence of the District Judge, Tehri shouting slogans that if the students would not be allowed to occupy the house, the District Judge could also not be allowed to occupy the house. Suresh Chand PW 8 and Ombir Singh PW 10 tried to prevent the agitators but the agitators threatened them to filed away from the place, otherwise, they would be burnt alive. The agitators also started pelting stones upon them. Consequently, both the eyewitnesses came behind and thereupon the agitators started throwing bottles, mashals and the liquid from the containers which they were having in their hands in the vacant residence of the District Judge, Old Tehri. The residence of the District Judge started burning. Constable Suresh PW 8 immediately went to the house of the S.D.M. which was situated nearby the place of incident. When both the eyewitnesses reached at the house of the S. D.M., they were informed that the S.D.M. had gone to the post office. Thereafter, both the eyewitnesses went to the post office and informed the S.D.M. about the incident. The S.D.M. immediately reported the matter on phone to the police station as well as to the fire brigade. Thereafter, the fire brigade reached at the spot to extinguish the fire.

The prosecution also adduced the evidence of constable Ombir Singh, P.W. 10 who was also on duty alongwith Suresh Chand PW 8 at the vacant residence of the District Judge, Old Tehri, at the time and date of the incident. He was produced by the prosecution to corroborate the evidence of Suresh Chand PW 8.

The learned Counsel of the appellant attempted to dispute the presence of the eyewitnesses at the place of the incident. Mr. Arvind Vashishth, A.S.G. (Central Government) for the C.B.I, tried to emphasize that the presence of the witnesses cannot be disputed at the place of occurrence as they were deputed on the duties at the vacant residential house of the District Judge situated in the Old Tehri. The learned Counsel for the appellant tried to emphasize that the documentary evidence reveals that they were never deputed to the place of occurrence or to the vacant residence of the District Judge, Old Tehri. Their departure and arrival in the GD has been shown for the safety of the S.D.M. Court at Old Tehri. To substantiate the argument, the learned Counsel for the appellant relied upon a document filed by the prosecution which is Ex. Ka 27 i.e. copy of the G.D. which shows the departure and arrival of the above eyewitnesses at the Semlasu Chowki. From the perusal of the G.D. Ex. Ka. 27, it is evident that the ''rawangi'' of the constables Suresh Chand PW 8 and Ombir Singh PW 10 were made for the duties at the Court of the S.D.M., Old Tehri. The relevant entry mentioned in the GD dated 4.10.1994 which is Ex. Ka 27, has been proved by the prosecution and is reproduced below:

Both the entries in the GD dated 4.10.1994 revealed that the eyewitnesses Suresh Chand PW8 as well as Ombir Singh, PW 10 were on the duty at the S.D.M. Court. It is very much in the prosecution evidence that the S.D.M. Court is situated about 1 km. away from the vacant residence of the District Judge. Ombir Singh PW 10 has categorically stated that the place of incident that is the vacant residence of District Judge could not be seen from the Court compound of the S.D.M. The site map prepared by the C.B.I, also reveals that the vacant residence of the District Judge, which was set on fire by the agitators, is not adjacent to the Court compound. The site plan also reveals that in between the residence of the District Judge and S.D.Ms. Court compound, there are some trees planted in between it and thereafter, there is a road which starts from hospital to old Court compound and thereafter there is a building of Court compound. It is apparent from the site plan that the vacant residence of the District Judge was distantly situated from the place of the duty of the eyewitnesses. The evidence of the eyewitnesses further testifies that the vacant residence which was burnt to ashes by the agitators was not visible from the SDM Court. If the eyewitnesses were deputed at the residence of the District Judge, the entry to this effect in the GD would have been made. Hence, this fact creates a doubt about the presence of the eyewitnesses at the place of incident.

It is further evident from entry No. 7 of the GD dated 4.10.1994 which was recorded at 18.30 p.m. reproduced above, clearly reveals that the eyewitnesses returned to the Chowki and stated that there was no incident during their duty hours. It is bounden duty of the police officials that whenever they are deputed on duty at any place and some untoward incident has taken place, then at the time of reporting to the Chowki, they should make a note of it in the GD book that some untoward incident has occurred at the place where they were deputed. Hence, if the eyewitnesses were deputed at the residence of the District Judge, they would have definitely reported that the unoccupied residence of the district Judge has been burnt to ashes by the appellant and the agitators. The nonmentioning of this fact in the GD, further creates strong suspicion to the Court in relation to the presence of the eyewitnesses at the place of incident.

It is also evident from the letter (Ex. Ka 8) dated 15th October, 1994 of the District Judge, Tehri written to the Addl. District Magistrate, Tehri that the residence of the District Judge at Old Tehri has been burnt to ashes on 4.10,1994 and the S.D.M. residing in the close proximity of the residence in question told him that at the time of incident, there was no security arrangement at all. In the aforesaid letter, the District Judge has further asked the Addl. District Magistrate, to enlighten him in regard to the steps taken at his end and the circumstances, leading to this major fire incident. The aforesaid letter further leads to take an inference that the police constables, who were said to be the eyewitnesses of the incident, were never deputed at the residence of the District Judge. This fact also gives credence to the fact that the presence of the witnesses at the spot was doubtful.

The eyewitnesses Suresh Chand PW 8 and Ombir Singh PW 10 has stated that immediately after the incident, they had informed the SDM who met them at the Post Office and the S.D.M. made a telephonic call to the police station at about 14.10 p.m. on the date of the incident whereas the incident took place at about 12 noon. According to the eyewitnesses, the information with regard to the incident was given immediately to the S.D.M. and the S.D.M. reported the matter after two hours to the police station. Since, the S.D.M. was at the Post Office, he could very well communicate this information to the police station. According to the prosecution evidence, the S.D.M. also telephoned the fire station to extinguish the fire. As a matter of fact. Sampurnanand Nautiyal (fireman) PW 4 has stated in his evidence that on the date of the incident, he received the information with regard to the above fire incident from the police station. It would be pertinent to mention here that if the S.D.M. had got the news with regard to the above fire incident, his immediate conduct would have been to inform the police as well as to the fire station. According to Sampurnanand Nautiyal PW4, the information was not given by the S.D.M. to the fire station and the information in regard to the above fire incident, was received in the fire station after two hours, though there was immediate urgency to extinguish the fire at the spot. This circumstance further reveals that the eyewitnesses had made an improvement in their evidence and they were not present at the scene of occurrence at the time of the incident.

It is also evident from the prosecution story that if both the eyewitnesses were present at the place of incident, they would have immediately called the police station on phone or the fire station to send the fire brigade. It was projected by the prosecution as well as by the Counsel for the appellant that the agitation of the ''Uttarakhand Sangharsh Samiti'' was going on in full swing, in retaliation of the incident took place in Muzaffarnagar where certain atrocities were committed to the members of the ''Sangathan'', as such, the agitators were causing mischief by fire or otherwise in the city. In such a situation, the S.D.M. was at the Post Office and it was an incumbent duty of the police officials to inform the city control or as well as to the higher officials of the police to seek the further police help. Instead of taking the police help, the eyewitnesses went to the S.D.M. at the Post Office.

The story did not end at this place. The prosecution had tried to assimilate the total story around the S.D.M. who could have unfolded the actual facts of the incident as how he received the information from the eyewitnesses with regard to the above fire incident and how he supplied the above information to the police station and to the fire station. The prosecution could not produce the S.D.M. who could have unfolded the story revealed by the prosecution in this case. Thus, this fact also leads a credence that the socalled eyewitnesses constable Suresh Chand PW 8 and Ombir Singh PW 10 were not on duty at the place of incident. In view of the above, I do not find the evidence of Suresh Chand PW 8 and Ombir Singh PW 10 reliable, to convict the appellant.

It is also apparent from the record that the eyewitnesses has taken a story that the Uttarakhand agitators headed by the appellant were coming to the unoccupied residence of the District Judge and started pelting stones, bottles and other liquids in the unoccupied residence of the District Judge by which the fire broke out there. It is also pertinent to mention here that there is specific averment that the appellant was in the procession and also participated in furtherance of the common object to set fire in the house of the District Judge but there is no evidence that whether the appellant had particularly thrown any bottle or not. Apart from this, CBI has filed a chargesheet wherein only the accusedappellant has been shown as agitator. It is not mentioned in the chargesheet that some unknown persons were also there. The learned Counsel for the appellant vehemently argued that the appellant could not be convicted under section 436, I.P.C. (simpliciter) without the aid of section 149, I.P.C. Mr. Nandan Arya, the learned A.G.A, refuted the contention. Mr. Arvind Vashishth, A.S.G. (Central Government) also contended that the defence has not been prejudiced by the said nonframing of the charge, as such, the accusedappellant cannot be acquitted on this score alone. The perusal of the charge reveals that the Trial Court has framed the charge under section 436, I.P.C. (simpliciter) and no ingredient of section 149 has been put in the charge to the accusedappellant. Now it is to be considered as to whether the appellant could be convicted for causing mischief by fire and sentenced him under section 436, I.P.C., when he was not charged with section 149, I.P.C. Now mute question remains for consideration when there is no direct evidence against the accusedappellant that he has set the fire and the witnesses had not stated anywhere in their evidence that they had seen him doing so. It is evident from the prosecution version that the agitators were having explosives in their hands, either in the bottle or in the container and they threw it with a common object in the vacant residence of the District Judge, which was later burnt to ashes. There is no evidence that whether the appellant had a container or a bottle in his hand; was it thrown by him; and whether any witness saw him doing so at the place of incident. Now, the pivotal question to be analyzed in the facts and circumstances of this case is whether the appellant could be convicted for the substantive offence of causing mischief by fire under section 436, I.P.C. without the charge having been framed against him under that section 149, I.P.C. This matter came up for consideration before the Apex Court in the case of Nanak Chand v. State of Punjab, AIR 1955 SC 274 = 1955 Cri. L.J. 721 wherein the Hon''ble Apex Court has held that if the accused has been convicted under section 302, I.P.C. read with 149, I.P.C. and no charge has been framed under section 149, the said irregularity was not curable because the appellant was misled in his defence by the absence of a charge under section 149. The Court framed the charge against the appellant for the offence of murder under section 302, I.P.C. (simpliciter) and convict him for murder and sentence him under section 302/149, I.P.C. was to convict him of an offence with which he had not been charged. In defending himself the appellant was not called upon to meet such a charge and in his defence he may well have considered it unnecessary to concentrate on that part of the prosecution case. Thereafter, the matter came up before the Hon''ble Apex Court on several occasions and the view expressed by the Hon''ble Apex Court in the case of Nanak Chand (supra) has been reiterated in the subsequent decisions. In the case of Nallabothu Venkaiah v. State of A.P., 2002 (45) ACC 661 (SC) = 2002 Cri LJ 4081 a similar question arose before the Hon''ble Apex Court whether the appellant could be convicted under section 302, I.P.C. with the aid of section 149 in absence of the charge of section 149, I.P.C. The Hon''ble Apex Court after relying upon earlier decisions on the point has held in paras 18, 19, 20, 21, 22, 23, and 24 as follows :

"(18) In Submn v. State of Kerala, 1993 JIC 545 (SC) = (1993) 3 SCC 722 (deciding Review Petition No. 1394 of 1993) six accused were arraigned for offences punishable under sections 302, 324, 323, 341, 148 read with section 149, I.P.C. Accused 1 Subran alone was convicted under section 302, I.P.C. (simpliciter) by the Trial Court and confirmed by the High Court on appeal. The threeJudge Bench of this Court reviewing its earlier judgment substituted paras 10 and 11 of the previous judgment as under:

"Appellant 1 Subran, had right not been charged for the substantive offence of murder under section 302, I.P.C. Subran, appellant 1, was not attributed the fatal injury or identified as the person who caused the fatal blow. According to the medical evidence, none of the injuries allegedly caused by appellant Subran either individually or taken collectively with the other injuries caused by him, were sufficient in the ordinary course of nature to cause death of Suku. There is no material on the record to show that the injuries inflicted by Subran, with the chopper, were inflicted with the intention to cause death of Suku. Under these circumstances, the conviction of the first appellant Subran, for an offence under section 302, I.P.C. simpliciter was neither desirable nor appropriate. The High Court, it appears, failed to consider the scope of clause (3) of section 300, I.P.C. in its proper perspective. In the facts of the present case, the intention to cause murder of Suku, deceased could not be attributed to the said appellant as the medical evidence also unmistakably shows that the injuries attributed to him were not sufficient in the ordinary course of nature to cause death of the deceased. Appellant 1 Subran, therefore, could not have been convicted for the substantive offence under section 302, I.P.C. and his conviction for the said offence cannot be sustained. That Suku died as a result of cumulative effect of all the injuries inflicted on him by all the four appellants stands established on the record. The question, therefore, arises what offence did the four appellants commit?"

(19) In Atmaram Zingamji v. State of Maharashtra, 1997 (35) ACC 491 (SC) nine persons were arraigned as accused before the Trial Court under sections 149/302/326, I.P.C. No other person, named or unnamed, is alleged to have participated in the crime. All the other 8 accused were acquitted by the High Court. However, the appellant was convicted under section 302, I.P.C. with the aid of section 149. On appeal, this Court held:

"6. In either of the above situations, therefore, the sole convict can be convicted under section 302, I.P.C. (simpliciter) only on proof of the fact that his individual act accused the death of the victim. To put it differently, he would be liable for his own act only. In the instant case, the evidence on record does not prove that the injuries inflicted by the appellant alone caused the death; on the contrary the evidence of the eyewitnesses and the evidence of the doctor who held the postmortem examination indicate that the deceased sustained injuries by other weapons also and his death was the outcome of all the injuries. The appellant, therefore, would be guilty 7 of the offence under section 326, I.P.C. as he caused a grievous injury to the deceased with the aid of a jambia (a sharpcutting instrument)."

(20) In Krishna Covind Patil v. State of Maharashtra, AIR 1963 SC 1413 = 1963 (2) Cri LJ 351 a fourJudge Bench of this Court has laid down that when four persons are tried on a specific accusation that only they committed a murder in furtherance of their common intention and three of them are acquitted, the fourth accused cannot be convicted with the aid of section 34, I.P.C. for the effect of law would be that those who were within him did not conjointly act with the fourth accused in committing the murder.

(21) In Nethala Pothuraju v. State of A.P., 1991 Cri LJ 3133 the appellant was called upon to face the trial alongwith'' other six accused for offences under sections 149, 141, 34 and 302, I.P.C. The Trial Court convicted more than five persons under section 302 read with section 149, I.P.C. The High Court acquitted some of the accused resulting in reducing the number of the accused to less than five and thus rendered section 149 inapplicable. On appeal this Court, having regard to the murderous attack by the appellant, as disclosed by the eyewitnesses and the number and nature of injuries sustained, converted the conviction as one under section 302 read with section 34, I.P.C.

(22) In Marachalil Pakku v State of Madras, AIR 1954 SC 648 = 1954 Cri LJ 1668 seven accused were charged under section 302, read with section 149, I.P.C. The Trial Court convicted two appellants alongwith five others of having constituted, an unlawful assembly and committed murder and they were convicted under section 302 read with section 149, I.P.C. The High Court, on appeal, gave benefit of doubt to five accused and acquitted them. In the appeal before this Court, it was argued that the said five accused having been acquitted and in the absence of a charge that five other unknown persons constituted an unlawful assembly, the two appellants could not be held members of the unlawful assembly which had the common object, the threeJudge Bench of this Court said:

"We have not been able to understand how the High Court could acquit these persons having held that the evidence of PWs. 5 and 6 as to how Kannan was murdered by accused 1 and 2 stabbing him and the others holding him by his hands and legs, was true. It also said that with regard to participation of accused 3 to 7 they could not say that the prosecution evidence was unreliable. On these findings, in our opinion, no scope was left for introducing into the case the theory of the benefit of doubt. We think that accused 3 to 7 were wrongfully acquitted. Though their acquittal stands, that circumstance cannot affect the conviction of the appellants under section 302, read with section 149, I.P.C."

(23) In Acchey Lal v. State of U.P., AIR 1978 SC 1152 as many as 15 named persons had taken part in the assault on the deceased. Fourteen accused had been acquitted by the High Court but the conviction and sentences awarded to the appellant by the Sessions Judge were upheld. This Court held that there is no finding by the High Court that after acquittal of the accused the unlawful assembly consisted of five persons or more, known or unknown, identified or unidentified, the provisions of sections 149 and 147 cannot be invoked for convicting the sole accused as no individual act was assigned to him.

(24) On an analytical reading of a catena of decisions of the Hon''ble Apex Court, the following broad proposition of law clearly emerges; (a) the conviction under section 302 simpliciter without aid of section 149 is permissible if overt act is attributed to the accused resulting in the fatal injury which is independently sufficient in the ordinary course of nature to cause the death of the deceased and in supported by medical evidence; (b) wrongful acquittal recorded by the High Court even if it stood, that circumstances would not impede the conviction of the appellant under section 302 read with section 149, I.P.C.; (c) charge under section 302 with the aid of section 149 could be converted into one under section 302 read with section 34 if the criminal act done by several persons less than five in number in furtherance of common intention is proved."

In the case of Sangam lal v. State of U.P., 2006 (54) ACC 466 (Alld.) = 2006 (1) Crimes 67 the Hon''ble Apex Court has held that where two accused were tried on charge under section 302/34, I.P.C., but only one accused was convicted and other was acquitted. Neither it was in the prosecution case nor there was any evidence on record to show that it is the appellant who alone assaulted the deceased. The conviction of the sole convict cannot be sustained under section 302, I.P.C. (simpliciter) and the conviction and sentence passed by the High Court was set aside and the appeal was allowed.

In the instant case, the incident took place on 4.10.1994, and now about 14 years has elapsed. At this distance of time, it would not be just and proper to direct the learned Sessions Judge to alter the charge and proceed with the charge afresh against the accusedappellant. In these circumstances; the appellant could not be convicted under section 436, I.P.C. (simpliciter) as the Trial Court has not framed the charge under section 436, I.P.C. read with 149, I.P.C. against the accusedappellant. It is also pertinent to mention here that the State Government has already remitted the sentence of the accusedappellant passed by the Sessions Judge. In these circumstances, I do not find it just and proper to remit back the matter for fresh trial.

In view of the foregoing discussion and on the basis of the aforesaid evidence, I am of view that it would not be safe to convict the appellant and the appellant is entitled to get the benefit of doubt. Therefore, the prosecution has not established the guilt beyond any reasonable doubt against the appellant. I find that the learned Trial Court has erred in convicting and sentencing the appellant. Hence, the appeal is allowed and the conviction and sentence against the appellant awarded by the Trial Court are set aside. The appellant is acquitted from the charge levelled against him. The appellant is on bail. He need not surrender. His bail bond and sureties and discharged.

Let the Lower Court record be sent back to the Court concerned.