1. The appellants are only two now as all other co-accused got dropped off on the way. They were a crowd in the beginning but when the charge-sheet was laid there were twenty four persons for offences under Section 302 read with Section 149 and Sections 148 and 201 of the Indian Penal Code. When the Sessions Judge examined the case for the purpose of framing the charge he found that only ten can be charged and hence discharged the remaining fourteen at the stage of Section 227 of the Criminal Procedure Code. After trial, four persons were convicted by the trial Court under Section 302 read with Section 34 and sentenced each of them to imprisonment for life. They and the remaining were convicted under Section 148 of the Indian Penal Code for which short term of imprisonment had been awarded. We are told that those remaining accused who were convicted only under Section 148 of the I.P.C. have completed their jail sentence and are not interested in challenging the conviction. The convicted four persons including, two appellants filed appeal before the High Court and a Division Bench confirmed the conviction of the appellants for the offence under Section 302 read with Section 34 of the I.P.C. The other two were acquitted. Thus the present two appellants have filed this appeal by special leave.
2. The charges framed against A.3 Hemanta Tripura and A. 4 Jatindra Tripura have been read out by Dr. U.R. Lalit, learned senior counsel who argued for the appellant to show that those two persons were specifically charged for the murder of the deceased- Nepal Das in this case, whereas the present appellants were charged only with Section 302 read with Section 149 of the I.P.C.
3. The substance of the allegation against them was that on 21-6-1990 at about 4.00 p.m. they along with their companions who all belonged to Communist Marxist party chased the deceased Nepal Das (who belonged to the Congress Party) and finally they succeeded in intercepting the victim and some of the assailants strangulated him to death. The specific role attributed to the present appellants is that they inflicted blows with lathis and nothing else.
4. Sh. U.R. Lalit, learned senior counsel read out the contents of the post-mortem report which showed all the ante-mortem injuries noted by the Doctor who conducted the autopsy. It is pertinent to point out that there is not even a single injury in.the said report which could even indirectly be attributed to a blow with lathi. The only witness, among the several witnesses examined, who testified that the present appellants inflicted blows with lathis was PW. 12. Of course PW. 1 to PW. 3 said that they had seen the appellants also among the large number of persons who chased the deceased and the appellants had lathis in their possession.
5. The question is whether the appellants shared the common intention with the real killers who at the same point of time strangulated the deceased to death. The mere fact that they were also included in the crowd which followed the deceased, is not enough to credit the appellants with the common intention sharing with the real killers. We notice the fact that the crowd which followed the deceased belonged to a political party and therefore running in the crowd need not necessarily be with the common intention to cause death. The intention can be different as well. If there was reliable evidence to show that the appellants inflicted lathi blows on the deceased perhaps we could have persuaded ourselves in believing that they too shared the intention to attack the victim. The testimony of PW 12 that he saw the appellants inflicted lathi blows on the deceased stands isolated and unsupported by a corresponding medical evidence. We pointed out earlier that the post-mortem report does not show even a bruise, much less a contusion or abrasion on the dead body.
6. The cumulative effect of the above assessment is that we entertain a reasonable doubt as to the guilt of the appellant that they shared any common intention with the killers who strangulated the deceased to death. The benefit to that reasonable doubt must be extended to the appellant, though at this late stage.
7. In the result we allow this appeal and set aside the conviction and sentence passed on the appellants and acquit them. We direct them to be set at liberty forthwith if they are not required in any other case.