whether on the acquital of some of accused , the number of the accused shall be five or less than five and as such conviction of other accused under sec.302 read with sec.149 IPC not sustainable ?
Apex court held that as the original Accused Nos. 6 and 7 are acquitted by the High Court and, therefore, the number of other accused shall be five or less than five and, therefore, the conviction of the original Accused No. 1 for the offence punishable under Section 302 with the aid of Section 149 IPC, is not sustainable is concerned, the same has no substance.
It is required to be noted that, from the very beginning, the case of the prosecution was that 7 to 8 persons entered the house with a common intention to kill the deceased. It is required to be noted that the original Accused Nos. 6 and 7 are acquitted by giving the benefit of
doubt and on the ground that the story put forward by the prosecution that they caught hold of the deceased, is not believable. There is no finding by the High Court while giving the benefit of doubt and acquitting the original Accused Nos. 6 and 7 that they were not present at the time
of the incident. Therefore, the overt act and the role attributed to them is not believable. Even otherwise, so far as original Accused No. 1 and even original Accused No. 2 are concerned, we are of the opinion that the prosecution in the present case has proved beyond doubt the case against them individually for the offence under Section 302 of IPC.
whether once the case against the original Accused Nos.6 and 7 has not been believed and consequently they are acquitted by giving them benefit of doubt, similar benefit of doubt ought to be given to the other accused, more particularly, Accused No.1 also. ?
Apex court held that against A1 and A2 there was direct evidence and as such the principle not applies where as Looking to the dimension of the room and the role attributed to the original Accused Nos.4 and 5, we are of the opinion that the original Accused Nos. 4 and 5 are required to be acquitted by giving them benefit of doubt, as has been given to the original Accused Nos. 6 and 7 by the High Court.