M.F.SALDANHA, J. - (1.) WE have heard the learned State Public Prosecutor in detail and on merits. In the first instance the appellant assails the acquittal of the accused other than those who have been convicted. On the remaining charges and as far as the charge under Section 302 Indian Penal Code is concerned, the State has filed an appeal against acquittal against all the accused. We shall deal with the two parts of the challenge separately.
(2.) THE learned State Public Prosecutor on the basis of the evidence on record demonstrates to us that the material does establish that even the accused who have been acquitted were present on the spot when the incident took place. Another crucial circumstance which he relies upon is the fact that the evidence also establishes that they were carrying some weapons or the other, particularly, sticks. It is his submission that the law on the point is well settled particularly in cases of rioting and unlawful assembly and that the liability of one is liability of all in so far as once the presence and participation can be established it is no defence to argue that one or more accused did not play a specific role in the assault or that the definite overt act was not attributable to this accused. The principle of law enunciated is undoubtedly correct. The learned State Public Prosecutor therefore submits that an order of acquittal was unjustified on the remaining charges and that interference is necessary. Normally, we would have accepted this submission except for the fact that this happens to be one of those unique cases in which the evidence itself establishes that even though the remaining accused were carrying some sort of weapons such as sticks that for some strange reasons, they did not mingle with the assailants and even though they were present there, it would not be possible to include them as part of the unlawful assembly nor is there any evidence on the basis of which it could be said that they were participants. It is only for this reason and on the special facts of the present case that we decline to interfere as far as the remaining charges are concerned. It necessarily follows that as far as these accused are concerned even the acquittal for the offence under Section 302 Indian Penal Code would be sustainable. Coming to the convicted accused, the learned State Public Prosecutor has pointed out to us that there is a direct correlation between the weapons used viz., sticks by A2 and a chopper by A3 and the injuries on the deceased which were as many as 22. The cause of death is also traceable to these injuries and his submission is that since there is evidence on record to indicate a prior quarrel and a motive, that it is very clear that the object of the assault was in order to kill and consequently, it is his submission that the acquittal under Section 302 Indian Penal Code is totally unjustified. It is true that there is some background to this incident and it is also true that there is a finding against A2 and A3 that it was as a result of the assault by them that the deceased lost his life. The nature of the injuries and the circumstances under which the incident took place have been carefully evaluated by the learned Trial Judge and there is a valid reason why he has convicted under Section 304 Indian Penal Code Part II and not Section 302 Indian Penal Code. Undoubtedly the distinction between the two offences is a fine one but, what really makes the difference is as to whether there was a definite intention to cause death or whether essentially, the object was to beat up the deceased which on the facts of the present case was certainly the intention of the accused. Unfortunately, the victim has died and that is the reason why Section 304 Part II has been invoked. On a careful reassessment of the record we see no ground on which the State Appeal can be entertained. The same accordingly fails and stands dismissed. We need to however clarify that the observations made by this Court which are necessary in view of the detailed submission canvassed by the learned State Public Prosecutor on merits are confined to the disposal of this appeal and that they will have no bearing on the merits when the main appeal is heard.;