Jayachandra Reddy, J.
1. Accused 1 to 3 in Sessions Case No. 17 of 1979 on the file of the Additional Sessions Judge, West Godavari Division at Eluru are the appellants. They are convicted under S. 304 Part II read with S. 34 of the Indian Penal Code and each of them is sentenced to undergo rigorous imprisonment for a period of five years. A-1 is further convicted under S. 323 of the Indian Penal Code for causing hurt with stick to P.W. 1 and is sentenced to undergo rigorous imprisonment for a period of three months. A-2 is also convicted under S. 324 of the Indian Penal Code for causing simple hurt to P.W. 1 and sentenced to undergo rigorous imprisonment for a period of six months. The convicted accused i.e. A-1 to A-3 preferred this present appeal. These three accused along with seven others were tried for offences punishable under Sections 147, 148 and 302 read with Section 149 of the Indian Penal Code apart from for the minor offences for causing hurt to P.W. 1. The learned Additional Sessions Judge however acquitted A-4 to A-10 completely.
2. Initially the appeal came up before our learned brother Muktadar, J. Sri M. Dwarkanath, the learned counsel for the appellants, raised a preliminary point viz., the conviction itself is illegal inasmuch as there is no charge under S. 302 read with S. 34 of the Indian Penal Code. It was argued before our learned brother Muktadar, J., that when ten accused persons were charged under S. 302 read with Section 149 of the Indian Penal Code and when seven of them were acquitted the remaining three accused viz., the appellants cannot be convicted by the application of Section 34 of the Indian Penal Code under Section 304 Part II read with Section 34 of the Indian Penal Code. The sum and substance of the submission was when there was no charge under Section 34 of the Indian Penal Code the same cannot be invoked. Reliance was placed by the learned Public Prosecutor on a decision of a Division Bench of this Court in A. Gopaiah v. State of A.P., 1978 Cri LJ 798 wherein it has been held that even without a specific charge under S. 302 read with Section 34 of the Indian Penal Code if the Court on the evidence comes to the conclusion that the particular accused have shared the common intention they can be convicted of such offence. Sri M. Dwarkanath, the learned counsel for the appellants, however, relied on a decision of the Supreme Court in Maina Singh v. State of Rajasthan, : 1976CriLJ835 in support of his contention that such a conviction cannot be maintained. Our learned brother Muktadar, J. having come to the conclusion that the decision of the Supreme Court (supra) was not brought to the notice of the Division Bench felt that the case must go before a Division Bench for an authoritative pronouncement. That is how the matter has come up before us.
3. Before we deal with the question of law involved we shall state the necessary facts. The three appellants and the other seven accused viz., A-4 to A-10 are all residents of Denduluru. A-1 to A-3 are brothers, A-4 and A-5 are brothers and others are close associates of A-1 to A-3. The deceased and his sons P.Ws. 1 to 3 and P.W. 5 are also residents of Denduluru. Some time back A-9 used to watch the fields of one Veeramachaneni Chowdary. While so P.W. 3 was employed to water the same to an extent of Ac. 6-00. Therefore the accused bore grudge against the family of the deceased. A-9 removed the obstruction kept in the sluice to prevent water. Suffice it to say that the feelings between the two groups are strained. While so on 11-8-1978 at about 8 p.m. near Motaparthivari tank, Denduluru A-1, A-3 to A-10 armed with sticks and A-2 armed with a spear formed into an unlawful assembly with the common object of attacking the deceased. On 11-8-1978 earlier to the incident there was a quarrel between P.W. 3 and A-9. During that quarrel P.W. 3 beat A-9. P.W. 1 who was employed under P.W. 12 after finishing his work was proceedings to his house at about 8 p.m. and when he reached the culvert he found all the accused sitting. A-2 owed Rs. 2/- to P.W. 1 and P.W. 1 asked him to pay the same. A-2 said that he would pay the same on the next day. While P.W. 1 was proceedings further P.W. 2 and the deceased came in the opposite direction and asked him as to why he stayed so late in the night. In the meanwhile A-1 to A-3 came from behind and A-1 beat P.W. 1 with a stick on his right leg and A-2 beat him with a spear on the right side of the forehead and A-2 exhorted others to beat the deceased and be also speared the deceased on the head and all the accused beat the deceased indiscriminately on his body with sticks. P.W. 2 who warded off the blows also received injuries. The accused having inflicted the injuries left the place. P.W. 1 proceeded to the house of Motaparthi Ramamohana Rao, farmer M.L.A. and on the way he met P.W. 12 and told him that the accused were beating his father and brother. P.W. 3, at that time came there and P.W. 1 and P.W. 3 went to the house of Ramamohana Rao and there they found P.W. 13 talking to Ramamohana Rao. They informed him as to what happened, and Ramamohana Rao instructed P.W. 13 to see what it was and instructed P.Ws. 1 and 3 to follow him. All of them went to the village and found the deceased lying and groaning. The deceased was brought to the Government Headquarters Hospital, Eluru accompanied by P.Ws. 1, 5, 7 and 12. The injured viz., the deceased and P.W. 1 were examined by the Doctor, P.W. 22. He sent intimations to the police and the Magistrate. P.W. 19, the head constable received the intimation and came to the hospital and found the deceased Daniel groaning and could not give out any statement. P.W. 1 however gave a statement, Ex. P-1 at midnight and P.W. 24, the Ist Additional Munsif Magistrate, Eluru also came to the hospital and recorded a statement Ex. P-17 from the deceased, P.W. 21, the Doctor on duty also certified the same, but no names have been mentioned in the statement, Ex. P-17. Exs. P-1 and P-17 the two statements were sent to the Taluk Police Station, Eluru and the Sub-Inspector of Police, P.W. 29 registered the case as Crime No. 133/78 and sent copies of the F.I.R. to the concerned and later on the intimation about the death of the deceased Ex. P-1 which was registered under Sections 147, 148, 323 and 324 of the Indian Penal Code was altered into one under S. 302 of the Indian Penal Code and express F.I.Rs. have been issued again, and took over the investigation. The body of the deceased was sent for post-mortem and P.W. 22 conducted the autopsy and found as many as 9 sutured wounds and on opening the sutures on the head he found epicrani al haematoma on the temporal region and also haemorrhage. He opined that the deceased died due to shock and haemorrhage on account of the multiple injuries. Meanwhile the accused were arrested and A-2, A-3 and A-9 who are also having injuries were produced before the Doctors P.W. 26 and P.W. 27 and P.W. 26 examined A-2 and A-3 and P.W. 27 examined A-9. They found simple injuries on the persons of A-2, A-3 and A-9. After completion of the investigation the charge-sheet was laid.
4. The plea of the accused was on of denial. Among them A-1 and A-8 pleaded that they were not present at the scene of occurrence. In support of their case they examined D.Ws. 1 to 3.
5. The learned Additional Sessions Judge believed the evidence of P.Ws. 1 and 2. However, he was not prepared to convict A-4 to A-10 since there is an omnibus allegation. Further the learned Additional Sessions Judge also reached the conclusion that A-1 to A-3 are the persons who came first and among them A-2 speared the deceased. The learned Additional Sessions Judge believed the direct evidence only to the extent of part played by A-1 to A-3. That learned Additional Sessions Judge however acquitted A-4 to A-10. While convicting A-1 to A-3 the learned Additional Sessions Judge was of the view that they were the persons who came first and attacked the deceased and the allegations against the rest of them were only omnibus. The learned Additional Sessions Judge however held that A-1 to A-3 had neither common intention nor common object to commit the murder of the deceased. The learned Additional Sessions Judge further held that A-1 to A-3 can be attributed with the knowledge that the injuries caused by them are likely to cause the death of the deceased and in that view of the matter he convicted them under Section 304 Part II read with Section 34 of the Indian Penal Code.
6. The learned counsel for the appellants at the outset submits that in the absence of a charge under Section 302 read with Section 34 of the Indian Penal Code these three appellants cannot be convicted under Section 304 Part II read with Section 34 of the Indian Penal Code. In number of cases the Supreme Court as well as this Court held that where there is only a charge under Section 302 read with S. 149 of the Indian Penal Code and in the absence of a charge under Section 302 read with S. 34 of the Indian Penal Code still some of the accused can be convicted under Section 302 read with Section 34 of the Indian Penal Code (Vide Amar Singh v. State of Haryana, : 1973CriLJ1409 .
7. In A. Gopaiah v. State of A.P. (1978 Cri LJ 798) (supra) Division Bench of this Court considered this question. There was also a case where the accused was charged only under Section 302 read with Section 149 of the Indian Penal Code and there is no charge under Section 302 read with Section 34 of the Indian Penal Code. The Sessions Judge, however, convicted seven of them under Section 302 read with Section 34 of the Indian Penal Code. The Division Bench ultimately acquitted A-7 and found A-1 to A-6 guilty under Section 304 Part II read with Section 34 of the Indian Penal Code. Before arriving at such a conclusion the Division Bench also considered that the absence of charge under Section 34 of the Indian Penal Code does not result in any prejudice. Before the learned single Judge (Muktadar, J.) the learned counsel for the appellants, however, relied on a decision of the Supreme Court in Maina Singh v. State of Rajasthan (1976 Cri LJ 835) (supra). That was a case where five named accused were tried. Four of them were acquitted. The question arose whether the remaining single accused could be convicted either under S. 302 read with S. 149 of the Indian Penal Code or under S. 34 of the Indian Penal Code. The High Court upheld the judgment of the trial Court convicting the single appellant under Section 302 read with Section 34 of India Penal Code for causing the death of the deceased and also for an offence under Section 326 of the Indian Penal Code for causing injuries to P.W. 2. It was contended before the Supreme Court that when five named accused have been tried and when four of them acquitted the remaining single accused cannot be convicted under Section 302 read with Section 34 of the Indian Penal Code. Their Lordships of the Supreme Court in the first instance held that in the given case, if the charge discloses only the named persons co-accused and the prosecution witnesses also confine their testimony only to those accused, even then it would be permissible to come to the conclusion that others named or unnamed, besides, those mentioned in the charge if there was other evidence to lead to the conclusion, but not otherwise. Their Lordships also further held that where the prosecution throughout proceeded that only named accused participated and when there is no evidence whatsoever that the offence was committed by the single remaining appellant along with any other unnamed persons and when the other four persons have been given benefit of doubt and have been acquitted, it would not be permissible to take the view that there must have been some other person along with the appellant. Their Lordships, however, altered the conviction of the appellant under Section 302 read with Section 34 of the Indian Penal Code to one under Section 326 of the Indian Penal Code. A careful perusal of this judgment of the Supreme Court shows that their Lordship have not enunciated such proposition of law that in the absence of a charge under Section 34 or Section 149 of the Indian Penal Code the accused can never be convicted of those offences though the evidence establishes that such offences have been committed by the accused.
8. It has been held in number of cases that in the absence of prejudice there is no legal bar to the recording of a conviction under Section 302 read with Section 149 of the Indian Penal Code even when the accused was charged under Section 302 read with Section 34 of the Indian Penal Code or vice versa. However in the instant case even though seven accused are acquitted still there are three accused viz., A-1 to A-3. Even applying the ratio laid down in Maina Singh v. State of Rajasthan (1976 Cri LJ 835) (supra) all the three of them could be convicted for offences simpliciter. When there are more than one, a conviction under Section 302 read with Section 34 of the Indian Penal Code against them also on the same reasoning can be recorded. Therefore, we see absolutely nothing illegal about the conviction recorded by the lower Court.
9. Now we shall proceed to consider the merits of the appeal. From the facts stated above it can be seen that the occurrence took place at about 8 p.m. in the village and five or six persons on the prosecution side and more than three persons on the accused side participated in the rioting. In the said rioting P.Ws. 1, 2 and the deceased as well as A-2, A-3 and A-9 also received injuries. The prosecution has examined P.Ws. 1 and 2 as direct witnesses to the occurrence. Both of them are the sons of the deceased. There has been an enmity between the accused and the deceased and his family members. P.W. 1 deposed that while he was returning to the village at about 8 p.m. he saw all the accused viz., A-1 to A-10 at the culvert. Then as he was proceeding further P.W. 2 and the deceased came in opposite direction. Just then A-1 to A-3 came behind and A-1 beat him with a stick on his right leg and A-2 speared the deceased on the head first and then instigated others and on being so instigated all the accused surrounded the deceased and beat him indiscriminately. After the occurrence the deceased and P.W. 1 as well as P.W. 2 were taken to the Government General Hospital, Eluru. P.W. 22, the Doctor examined them and intimations also were sent to the police as well as to the Magistrate. P.W. 24 the Ist Additional Munsif Magistrate came to the hospital late in the night and recorded the statement of the deceased Ex. P-17. Unfortunately for the prosecution the deceased could not give any names. He only mentioned that a stone was thrown at him. Then a report was taken from P.W. 1 which has all the details. In Ex. P-1 the names of ten accused are mentioned. With regard to the occurrence it is stated that A-1 to A-3 came and that A-2 was armed with a stick, that A-1 was armed with a spear and it was A-1 that inflicted injuries with spear. Therefore there is a variation as to the weapon with which A-2 was armed. As a matter of fact in Ex. P-1 it is not even mentioned that any of these there accused beat the deceased. According to the version given in Ex. P-1, A-2 beat with a stick on the right thigh of P.W. 1 and A-1 who was armed with a spear speared P.W. 1 on his head, and that A-2 raised cries and all the accused thereafter came and beat the deceased and P.W. 2. Even in the present version no overt acts were attributed to A-3. His case also, therefore, stands on the same footing as A-4 to A-10. Having regard to the version given in Ex. P-1 it is difficult to accept the prosecution case that A-2 was armed with a spear and he dealt a blow on the deceased. The investigating office had admitted in his cross-examination that P.W. 1 in his earlier statement has not stated that A-2 inflicted any such injury. Therefore, it must be taken that A-2's overt act is also not established. Then there remains A-1. With regard to the overt acts attributed to him there is a variation between the version given in Ex. P-1 and the present version. From the version given in Ex. P-1, A-1 is said to have armed with a spear, whereas the present version is that he was only armed with a stick. In Ex. P-1 it is stated that A-1 armed with a spear hit P.W. 1. Therefore in this state of unsatisfactory evidence it is difficult to affirm the convictions of A-1 to A-3. In this context we must also remember that A-2, A-3 and A-9 are also injured, and the said injuries have not been properly explained. There is an inordinate delay in giving the report. The deceased could not mentioned any names in his statement. It is only thereafter Ex. P-1 was recorded implicating as many as ten accused. Though there are two injured witnesses in the case their version with regard to the overt acts attributed to A-1 to A-3 is highly doubtful and does not inspire confidence particularly because the earliest version given in the first report is at variance with the present version. They went on changing their versions in respect of the part played by A-1 and A-2. They have however not attributed any overt act to A-3. In these circumstances we give the benefit of doubt to A-1 to A-3 viz., the appellants herein and set aside their convictions and sentences as recorded by the lower Court and acquit them of all the charges. If A-1 to A-3 had paid any fine the same shall be refunded. Their bail bonds shall stand cancelled.
10. In the result the appeal is allowed.
11. Appeal allowed.