N.M. Kasliwal, J.
1. This appeal by accused Ram Pal and Madan Lal is directed against the judgment of learned Additional Sessions Judge No. 1, Baran, dated 27th January, 1981, convicting and sentencing them in the following manner :-
(a) under Section 148 : Two years rigorous imprisonment
(b) under Section 302
read with 149 : Life imprisonment
(c) under Section 326 : Ten years rigorous imprisonment
read with Section 149 and a fine of Rs. 200/-
In default of payment of fine, to
further undergo rigorous imprison-
ment for two months
2. It would not be necessary to mention detailed facts of the case as the learned Counsel for accused appellants has not challenged the incident and the participation of the accused appellants in the crime. The only contention raised on behalf of the accused appellants was that the police had registered a case against the accused persons on the basis of first information report lodged by Laxmi Narain Dhakar on 13-3-1970. The police filed a challan against the twenty three accused persons only as the present accused appellants had absconded. Out of the twenty three accused persons the learned Additional Sessions Judge Baran, vide judgment dated 6-1-1973, acquitted thirteen accused persons and convicled the remaining ten accused persons in the following manner.
(a) Two months R.I. for the offence under Section 148 IPC,
(b) For the offence under Sections 324/149 IPC, they shall undergo 1 year's R.I. each.
(c) For the offence under Section 304 Part I and 326 read with Section 149 IPC. ten years R.I. each one of them together with a fine of Rs. 200/- each,
In default of payment of the amount of fine each accused shall undergo two months R.I.
3. These ten accused persons filed an appeal in the High Court and learned Single Judge of this Court vide judgment dated 4-9-1973, in Criminal Appeal No. 26/1973 acquitted the three act used appellants and maintained the conviction and sentence so far as the remaining seven accused persons were concerned.
4. Learned Counsel for the accused appellants before us submitted that the above mentioned seven accused persons were convicted under Section 304/149 IPC, and other Sections and were awarded a sentence of ten years rigorous imprisonment and so far as the imprisonment awarded in respect of the other offences was concerned the same was ordered to run concurrently. It is thus submitted that the present accused appellants have been wrongly convicted under Section 302/149 IPC, for the same incident and they should also be convicted under Section 304/149 and should be awarded the sentence as given to the other co-accused whose conviction and sentence remained confirmed by the High Court in Criminal Appeal No. 26/1973.
5. It remains undisputed that the present accused appellants were also the co-accused and had participated in the same manner in the incident as the other seven co-accused who have been convicted under Section 304/149 IPC. Learned Additional Sessions Judge has convicted the present accused appellants under Section 302/149 IPC, simply on the ground that during the trial of the present case, the doctor had stated that the injuries found on the body of the deceased were sufficient in the ordinary course of nature to cause death, while such evidence was wanting in the trial court of the other co-accused. A perusal of the record of this case shows that the present accused appellants were not charged with the substantive offence under Section 302 IPC but they have been only charged with the help of Section 149 IPC. There is no dispute that the incident was the same and the present accused appellants were also guilty associates in the crime and had formed an unlawful assembly with the same common object as that of the other co-accused.
6. In view of these circumstances, we find no justification for convicting the accused appellants under Section 302/149 as their case is not distinguishable from the case of other co-accused who have been convicted under Section 304/149 only for the same incident.
7. In the result, we allow this appeal in part and set aside the order of learned Additional Sessions Judge so far as convicting the accused appellant under Section 302/149 is concerned. We maintain the conviction and sentence awarded to the accused appellants for offence under Sections 148 and 326/149 IPC. We further convict the accused appellants under Sections 304 Part I read with Section 149 IPC and award the sentence of ten years rigorous imprisonment and a fine of Rs. 200/- and in default of payment of fine, to further undergo rigorous imprisonment for two months. All the substantive sentences awarded to the accused appellants shall run concurrently. The accused appellants shall be entitled to the benefit of the provisions of Sections 428 Cr.P.C.