V.V.BEDARKAR - (1.)Both these appeals are directed against the judgment of the learned Additional Sessions Judge Porbandar District Junagadh in Sessions Case No. 58 of 1980 by which he convicted Luhana Chandulal Dayalji appellant (original accused no. 3) of Criminal Appeal No. 221 of 1981 for the offence punishable under sec. 302 read with sec. 34 of the Indian Penal Code and sentenced him to sufer rigorous imprisonment for life and to pay a fine of Rs. 50.00 and in default of fine to undergo rigorous imprisonment for further one month. He however acquitted Aher Parbat Ala (original accused no. 1) and Mer Mulu Munja alias Choti (original accused no. 2) for the offences with which they were charged. Original accused no. 3 Luhana Chandulal Dayalji has filed Criminal Appeal No. 221 of 1981 against the order of conviction and sentence passed against him while the State has filed Criminal Appeal No. 431 against the order of acquittal passed in favour of original accused no. 1 Aher Parbat Ala and original accused no. 2 Mer Mulu Munja alias Choti and also for not convicting original accused no. 3 Luhana Chandulal Dayalji for the offence under sec. 302 of the Indian Penal Code simpliciter without the aid of sec. 34 of the Indian Penal Code.
(2.)The prosecution case is that on 29-7-1980 at about 3-00 p. m. the incident is alleged to have taken place when complainant Veja Meraman and deceased Mer Raja Jeta had gone to the shop known as Gothania Automobiles at Porbandar. Both of them belong to village Khabhodar and on that day they had gone to Porbandar for some Court case. After the case was adjourned they had gone to purchase some motor spare-parts at Gothania Automobiles. At that time accused no. 3 came there and abused Raja Jeta by his another and sister and then gave a blow with a knife on his abdomen. On receipt of the knife blow Raja Jeta pressed his abdomen and ran towards the railway lines. Accused no. 3 and one another person who was later on identified to be Aher Parbat Ala (original accused no. 1) followed him overcame him and started giving blow with knives. When complainant Veja Meraman tried to go near Raja Jeta it is alleged that Mer Mulu Munja alias Choti (original accused no. 2) who was standing with a Tamancha threatened him saying that if he went near them he would be blown of. Therefore the complainant was afraid and did not proceed further. In the meantime two persons viz. Hothi Jiva (Ex. 20) and Natha Popat (Ex. 21) came from the other side. It is alleged that as Natha Popat raised a shout the accused ran away. thereafter these three witnesses Natha Popat Hothi Jiva and the complainant went near Raja Jeta who had died. Complainant Veja Meraman went to the City Police Station Porbandar and gave his complaint. The police thereafter started investigation and the accused were charge-sheeted committed to the Court of Sessions and tried and after hearing the case the learned Sessions Judge passed the orders as aforesaid.
(3.)The only question to be considered is whether accused no. 3 should be convicted for the offence punishable under sec. 302 read with sec. 34 of the Indian Penal Code. We have come to the conclusion that he cannot be convicted for the offence under sec. 32 of the Indian Penal Code simpliciter because it is not proved that the fatal blows are given by him to the deceased. Now it is argued that because accused nos. 1 and 2 are acquitted and there is no person whose constructive liability could be fastened to accused no. 3 he cannot be convicted for the offence of murder punishable under sec. 302 read with sec. 34 of the Indian Penal Code but he can be convicted for the offence committed by him and that is only under sec. 324 of the Indian Penal Code.