Penal Code, 1860 – ss. 302 rw s. 34, 201 – Murder – Common intention – Causing disappearance of evidence of offence, or giving false information to screen offender – Conviction of accused persons for the offence punishable u/s. 302 rw ss. 148 and 149 and s. 201 and sentenced accordingly, for committing triple murder – High Court acquitted three of them and as regards remaining substituted their conviction with s. 302/34, while maintaining conviction u/s. 201 – Correctness: Held: Grave prejudice caused to the appellant by altering the charge u/s.
302 read with ss. 148 and/or 149 to a charge u/s. 302/34 without giving any notice to the appellant or his advocate about the charge – No reason recorded in the impugned judgment to show that s.34 was applicable – No finding recorded that there was sufficient evidence to prove that the four accused who were ultimately convicted had done the criminal act in furtherance of a common intention – On perusal of the evidence of prosecution witness, there was no evidence of the presence of common intention which is the necessary ingredient of s. 34 – Only the act of stopping the deceased would not, by itself, bring the case within the purview of s.34 – No overt act attributed to the appellant by any prosecution witness in the assault on the deceased – It is difficult to infer a prior meeting of minds – There is no overlap between common object and common intention – However, the evidence of eyewitnesses very consistent on the role played by the appellant in dragging the dead body of the deceased and throwing the same into a well – Thus, there is every justification for convicting the appellant for the offence punishable u/s. 201 of causing the disappearance of the evidence of the crime – Appellant’s conviction u/s. 302/ 34 set aside, however, the conviction for the offence punishable u/s. 201 is confirmed – Appellant having already undergone the sentence, the bail bonds are cancelled. [Para 13-16, 18-20]
Code of Criminal Procedure, 1973 – s. 386 rw s. 216 – Appeal against conviction – Power of court to alter or add the charge – Notice of the charge proposed to be altered or added to the accused – Necessity of: Held: In view of the wide powers conferred by s. 386 Cr.PC, an Appellate Court can exercise the power u/s. 216 of altering or adding the charge – Principles of natural justice require the appellate court to put the accused to the notice of the charge proposed to be altered or added when prejudice is likely to be caused to the accused by alteration or addition of charges – Unless the accused is put to notice that the appellate court intends to alter or add a charge in a particular manner, his advocate cannot effectively argue the case – Court can give the notice of the proposed alteration or addition of the charge even by orally informing the accused or his advocate when the appeal is being heard – Court can grant a short time to the advocates for both sides to prepare themselves for addressing the Court on the altered or added charge. [Para 12]
LIST OF CITATIONS AND OTHER REFERENCES
Mala Singh v. State of Haryana (2019) 5 SCC 127 : [2019] 3 SCR 932; Chittarmal v. State of Rajasthan (2003) 2 SCC 266 : [2003] 1 SCR
49 – referred to.
OTHER CASE DETAILS INCLUDING IMPUGNED
ORDER AND APPEARANCES
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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