Penal Code, 1860 – s. 302/149 or s. 302/34 – Conviction under – Trial Court convicted 11 accused persons u/ss. 148, 302/149, 323/149 and 506/149 IPC – However, High Court acquitted 8 accused persons u/s. 302/149 IPC and upheld the conviction in respect of 3 accused persons u/ss.302/34 IPC – The 3 accused persons filed appeal in Supreme Court – During the pendency of appeal, one appellant No.1-accused expired – Held: Once 8 coaccused were acquitted by the High Court u/s. 302/149 IPC and their acquittal had attained finality, the charge u/s. 149 IPC collapsed against the three appellant-accused – Also, there could be no unlawful assembly consisting of less than five accused persons – Therefore, appellants could not be charged u/s. 149 IPC for want of numbers – Insofar as s.34 IPC is concerned, in absence of any evidence of common intention qua the three appellants so as to bring their case u/s. 34 IPC and the High Court having failed to given any reasons in support of altered conviction, their conviction u/s. 302/34 IPC not legally sustainable.
Penal Code, 1860 – Alteration of conviction from offence u/s. 302/34 IPC to s. 324 IPC – Held: Out of the 11 accused persons convicted u/s.148, 302/149, 323/49, 8 persons were completely let of and their acquittal had attained finality – Further, at the appellate stage no evidence was relied on by the prosecution to sustain the charge of s.34 IPC qua the 3 accused persons independent of 8 acquitted co-accused – Out of two main accused assailants, one (appellant no.1) has died and other was acquitted – There was no reasoning given by the High Court for sustaining the conviction of the 3 appellants-accused in support of alteration of the charge to s.302/34 IPC in place of s.302/149 IPC – Also, as per post-mortem report, both the assault made by the appellant nos. 2 and 3 caused simple injury to the victim – In light of these circumstances, the two appellants entitled to claim benefit and seek alternation of their conviction for commission of the offence punishable u/s. 324 IPC than to suffer conviction u/s. 302/34 IPC – Thus, appellant nos.2 and 3 convicted u/s. 324 IPC on basis of their individual participation in the commission of the crime.
Partly allowing the appeal, the Court
HELD: 1. Once eight co-accused were acquitted by the High Court under Section 302/149 IPC by giving them the benefit of doubt and their acquittal attained finality, the charge under Section 149 IPC collapsed against the three appellants also because there could be no unlawful assembly consisting of less than five accused persons. In other words, the appellants (3 in number) could not be then charged with the aid of Section 149 IPC for want of numbers and were, therefore, rightly not proceeded with under Section 149 IPC. [Para 55][949-B]
2. Keeping in view the law laid down by this Court, the High Court though had the jurisdiction to alter the charge from Section 149 IPC to Section 34 IPC qua the three appellants, yet in the absence of any evidence of common intention qua the three appellants so as to bring their case within the net of Section 34 IPC, their conviction under Section 302/34 IPC is not legally sustainable. [Para 56][949-C, D]
3. The prosecution never came with a case that all the 11 accused persons shared a common intention under Section 34 IPC to eliminate victim and nor came with a case even at the appellate stage that only 3 appellants had shared common intention independent of 8 co-accused to eliminate victim. When prosecution did not set up such case at any stage of the proceedings against the appellants nor adduced any evidence against the appellants that they (three) prior to date of the incident had at any point of time shared the “common intention” and in furtherance of sharing such common intention came on the spot to eliminate victim and lastly, the High Court having failed to give any reasons in support of altered conviction except saying in one line that conviction is upheld under Section 302/34 IPC in place of Section 302/149 IPC, the invoking of Section 34 IPC at the appellate stage by the High Court cannot be upheld. [Paras 62 and 63][950-B-E]
4. As per post-mortem report, both the assault made by the appellant Nos. 2 and 3 caused simple injury to victim which did not result in her death and nor could result in her death. [Para 67][951-A]
5. In a case of this nature, when there is a fight between the two groups and where there are gun shots exchanged between the two groups against each other and when on evidence eight co-accused are completely let of and where the State does not pursue their plea of Section 149 IPC against the acquitted eight accused which attains finality and where the plea of Section 34 IPC is not framed against any accused and where even at the appellate stage no evidence is relied on by the prosecution to sustain the charge of Section 34 IPC qua the three accused appellants independent of eight acquitted co-accused and when out of two main accused assailants, one has died and the other is acquitted and lastly, in the absence of any reasoning given by the High Court for sustaining the conviction of the three appellants in support of alteration of the charge, the two appellants are entitled to claim the benefit of entire scenario and seek alteration of their conviction for commission of the offence punishable under Section 324 IPC simplicitor rather than to suffer conviction under Section 302/34 IPC, if not complete acquittal alike other eight co-accused. [Para 68][951-B-D]
6. Therefore, appellant Nos. 2 and 3 could at best be convicted for an offence punishable under Section 324 IPC and not beyond it on the basis of their individual participation in the commission of the crime. [Para 69][951-E]
Willie (William) Slaney v. State of M.P. AIR 1956 SC
116 : [1955] SCR 1140 – followed.
Kantilal Chandulal Mehta v. State of Maharashtra & Anr. (1969) 3 SCC 166 : [1970] 2 SCR 742 ; Karnail Singh & Anr. v. State of Punjab AIR 1954 SC 204 : [1954] SCR 904 ; Lachhman Singh & Ors. v. The State AIR 1952 SC 167 : [1952] SCR 839 – relied on. Mohd. Khalil Chisti v. State of Rajasthan & Ors. (2013)
2 SCC 541 : [2012] 13 SCR 777 ; Chittarmal v. State of Rajasthan (2003) 2 SCC 266 : [2003] 1 SCR 49 – referred to.
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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