Order
1. Leave granted limited to the nature of offence. Heard the learned counsel for the parties.
2. The appellant and two others were tried for committing the murder of one Naba in furtherance of their common intention. The trial court convicted the appellant under Section 302 IPC (simpliciter) and acquitted the other two. As the appeal preferred by him in the High Court proved abortive, he has filed the instant appeal.
3. In the absence of any conclusive evidence adduced by the prosecution to prove that the injury inflicted by the appellant resulted in the death of the victim, the appellant could not be, in view of the acquittal of the other two against whom the allegation was that they also inflicted injuries on the deceased, convicted under Section 302 IPC (simpliciter) as he would be liable only for his own act, which in the instant case was of causing a grievous injury on the head of the deceased by a “kudali” (a sharp-cutting instrument). The offence committed by the appellant will, therefore, come squarely under Section 326 IPC. We accordingly set aside the conviction and sentence of the appellant under Section 302 IPC and convict him under Section 326 IPC. For the altered conviction we sentence him to suffer rigorous imprisonment for 7 years.
4. The appeal is thus allowed.