ORDER K. Jayachandra Reddy, J. - In Sessions Case No. 14/86 on the file of the Sessions Judge, Wayanad Division, Kalpetta, four persons were tried for offences punishable under Sections l20-B, 398, 302/149, I.P.C. and also under Sections 25(1)(c) read with 3 and 27 of the Indian Arms Act, 1959. The trial court convicted all of them for the offence of murder and also under Section 398, I.P.C. A-2 Nirappaukandathil Kurien was sentenced to death and other three accused were sentenced to imprisonment for life and also to undergo R.I. for seven years under Section 398, I.P.C. A-1 and A-2 were further sentenced to undergo R.I. for five years under Section 25(1) of the Arms Act. The sentences were directed to run concurrently. All the accused preferred appeals to the High Court and the confirmation case regarding the death sentence awarded to A-2 was also heard along with the appeals. The High Court altered the sentence of A-2 to one of imprisonment for life and with this modification dismissed all the appeals. A-1 and A-3 have not preferred any appeals to this Court. A-4, Vettikuzhiyil Joseph @ Jose has prefered Criminal Appeal No. 138/91 and A-2. Nirappukandathil Kurien has preferred Criminal Appeal No. 443/91. The prosecution case is as follows: 2. The four accused along with Kunnummal Razak, P.W. 1, the approver in the case and Puzhamkunnummal Chandran entered into a conspiracy to commit dacoity at the house of Sekharan, the deceased and also to kill him. All of them were unemployed and they were in search of employment A-1 promised P.W. 1 to get him employed at Mysore. On 1.3.1984 P.W. 1 and A-1 went to the house of A-1. From there they went out carrying three guns, rice and other provisions. They went to a place called Pallikunnu and met A-2 to A-4 and also Chandran. One gun was given to A-2 and one to P.W. 1. A-1 was carrying a double-barrel gun and A-3 was carrying the provisions. On that night they stayed in forest and prepared rice gruel from a rock and after drinking the same slept for a while. On the third day they were trekking through the forest and by the evening they reached a place known as Kurichiarmala. A-1 was carrying a double-barrel gun and A-3 was carrying the provisions. On that night they stayed in forest and prepared rice gruel from a rock and after drinking the same slept for a while. On the third day they were trekking through the forest and by the evening they reached a place known as Kurichiarmala. A-1 told others that K. Sekharan, the deceased is a rich man and is having money and gold ornaments and therefore they should rob him on that night. Thereupon P.W. l and A-4, one of the appellants before us, stated that they would not go. There upon A-1 threatened them with death and they were forced to follow. At about 2 A.M. they went near the house of the deceased and took positions. Chandran kicked at the door. Thereupon a window was opened and light was flashed out. After some time, an old man accompanied with two women came out flashing electric torches and another woman was carrying a lamp. A-1 accosted them and commanded "hands up" and shot the old man. But the shot missed that man and hit Chandran, one of the associates of the accused who died on the spot. At that moment, A-2 shot with the gun at the old man who fell down. The women, however, managed to carry the injured old man inside the house and shut the door. A-4 ran away. A-1 to A-3 also came hurriedly to P.W. 1 and A-4. All of them went to their native places. Information reached the police and the investigation was taken up. The injured Sekharan was taken in a jeep to the Government Sekharan was taken in a jeep to the Government Hospital. Sub Inspector of Police recorded .the statement of P.W. 2. The deceased died and in quest was held over his dead body as well as on the dead body of Chandran. The investigation proceed further and the accused including P.W. 1 were arrested and at their instances, the weapons were seized and after completion of the investigation, the charge-sheet was laid. 13. P.W. 1, however, was tendered pardon and he was taken as an approver. Then the identification parade was held. P.Ws. 2 and 3 identified P.W. 1 and A-2 and A-3. P.W. 4 identified A. 2 to A-4. A-1 was not put up for identification as he was not apprehended by them. 13. P.W. 1, however, was tendered pardon and he was taken as an approver. Then the identification parade was held. P.Ws. 2 and 3 identified P.W. 1 and A-2 and A-3. P.W. 4 identified A. 2 to A-4. A-1 was not put up for identification as he was not apprehended by them. On 19.1.1985 A-1 was apprehended and at his instance the gun and at his instance the gun and other material objects were recovered. We may mention at this stage that P.W. 4 was the Watchman in Kurichiarmala Estate and he was present during the inquest over the dead body of Chandran and he deposed that he has seen the accused" persons including P.W. 1 sitting on a rock on that evening. 4. Both the courts below have examined the evidence of P.W. 1, the approver as well as that of P.W s. 2, 3 and 4 in great detail. It is not in dispute that the deceased Sekharan was shot at on that fateful night. The presence of P.Ws. 2 and 3 in the house cannot be doubted. Chandran, One of the conspirators and associates of other accused received gun-shot injury caused by the misfiring of the gun used by A-1 and his dead body also was there. P.W. 4 has identified the dead body ad also stated that he has seen Chandran, the deceased person in the company of four others in the previous evening in the forest and he has identified them in the identification parade. Therefore the evidence of P.W. 1, the approver" is not only correctly found to be true but the courts below also have rightly hold that the evidence of P.W. l was amply corroborated by the evidence of P.Ws. 2 to 4 and other circumstantial evidence namely the recovery of weapons etc. Therefore the prosecution has established the case to that extent beyond all reasonable doubt. 5. So far A-2, the appellant in Criminal Appeal No. 443191 is concerned, he shot at the deceased and the trial court sentenced him to death. But the High Court altered it to imprisonment for life. There are absolutely no merits in the appeal filed by him. Now coming to A-4, the appellant in Criminal Appeal No. 138/91, learned counsel submitted that he has not participated nor has committed any other overt act worth mentioning. But the High Court altered it to imprisonment for life. There are absolutely no merits in the appeal filed by him. Now coming to A-4, the appellant in Criminal Appeal No. 138/91, learned counsel submitted that he has not participated nor has committed any other overt act worth mentioning. P.W. 1s evidence is to the effect that he was simply following them At this juncture it is noteworthy that P.W. 1 and A-4 wanted to back out when A- suggested that they must go and commit decoity in the house of the deceased. However. P.W. 1 was given a gun and he followed them. A4 also Was threatened by A-1 and he also was forced to follow the other accused. Beyond this he did not do anything. In any event his following the other accused would not make him constructively liable for the offence of murder committed by A2. A-4 was not armed and under a threat he followed others buck is difficult to, attribute knowledge to him the murder was likely to be committed during the dacoity. Therefore his conviction under Section 302 Simpliciter cannot be upheld. A-1 s suggestion to his associates was only to commit dacoity. All these circumstances would go to show that A-4 can be convicted under Section 398, I.P.C. only. Consequently A-4s conviction under Section 302, I.P .C. and sentence of life of imprisonment there under are set aside. However, his conviction under Section 398, I.P.C. and sentence of seven years R.I. are confirmed. 6. In the result Criminal Appeal No. 138191 filed by A-4 is partly allowed as indicated above and if he has already served out the sentence of seven years he shall be released. Criminal Appeal No. 443191 filed by A-2 is dismissed. Appeal of Accused A2 dismissed. Appeal of Accused A4 partly allowed. For Citation : 1993 Supp(4) SCC 7 = 1993 Crl. L.J. 3558 = 1994 SCC (Crl.) 23