MALA SINGH & ORS. versus STATE OF HARYANA

[2019] 3 S.C.R. 932

MALA SINGH & ORS.

STATE OF HARYANA

(Criminal Appeal No.1144 of 2009)

BFEBRUARY 12, 2019

[ABHAY MANOHAR SAPRE ANDR. SUBHASH REDDY, JJ.]

Penal Code, 1860 – s. 302/149 or s. 302/34 – Convictionunder – Trial Court convicted 11 accused persons u/ss. 148, 302/C149, 323/149 and 506/149 IPC – However, High Court acquitted 8accused persons u/s. 302/149 IPC and upheld the conviction inrespect of 3 accused persons u/ss.302/34 IPC – The 3 accusedpersons filed appeal in Supreme Court – During the pendency ofappeal, one appellant No.1-accused expired – Held: Once 8 co-Daccused were acquitted by the High Court u/s. 302/149 IPC andtheir acquittal had attained finality, the charge u/s. 149 IPCcollapsed against the three appellant-accused – Also, there couldbe no unlawful assembly consisting of less than five accused persons– Therefore, appellants could not be charged u/s. 149 IPC for wantof numbers – Insofar as s.34 IPC is concerned, in absence of anyEevidence of common intention qua the three appellants so as tobring their case u/s. 34 IPC and the High Court having failed togiven any reasons in support of altered conviction, their convictionu/s. 302/34 IPC not legally sustainable.

Penal Code, 1860 – Alteration of conviction from offence u/Fs. 302/34 IPC to s. 324 IPC – Held: Out of the 11 accused personsconvicted u/s.148, 302/149, 323/49, 8 persons were completely letof and their acquittal had attained finality – Further, at the appellatestage no evidence was relied on by the prosecution to sustain thecharge of s.34 IPC qua the 3 accused persons independent of 8acquitted co-accused – Out of two main accused assailants, oneG(appellant no.1) has died and other was acquitted – There was noreasoning given by the High Court for sustaining the conviction ofthe 3 appellants-accused in support of alteration of the charge tos.302/34 IPC in place of s.302/149 IPC – Also, as per post-mortemreport, both the assault made by the appellant nos. 2 and 3 causedHsimple injury to the victim – In light of these circumstances, the two932

appellants entitled to claim benefit and seek alternation of theirconviction for commission of the offence punishable u/s. 324 IPCthan to suffer conviction u/s. 302/34 IPC – Thus, appellant nos.2and 3 convicted u/s. 324 IPC on basis of their individualparticipation in the commission of the crime.

Partly allowing the appeal, the Court

HELD: 1. Once eight co-accused were acquitted by theHigh Court under Section 302/149 IPC by giving them the benefitof doubt and their acquittal attained finality, the charge underSection 149 IPC collapsed against the three appellants alsobecause there could be no unlawful assembly consisting of lessthan five accused persons. In other words, the appellants (3 innumber) could not be then charged with the aid of Section 149IPC for want of numbers and were, therefore, rightly notproceeded with under Section 149 IPC. [Para 55][949-B]

2. Keeping in view the law laid down by this Court, theHigh Court though had the jurisdiction to alter the charge fromSection 149 IPC to Section 34 IPC qua the three appellants, yetin the absence of any evidence of common intention qua the threeappellants so as to bring their case within the net of Section 34IPC, their conviction under Section 302/34 IPC is not legallysustainable. [Para 56][949-C, D]

3. The prosecution never came with case that all the 11accused persons shared common intention under Section 34IPC to eliminate victim and nor came with case even at theappellate stage that only 3 appellants had shared commonintention independent of 8 co-accused to eliminate victim. Whenprosecution did not set up such case at any stage of theproceedings against the appellants nor adduced any evidenceagainst the appellants that they (three) prior to date of theincident had at any point of time shared the “common intention”and in furtherance of sharing such common intention came onthe spot to eliminate victim and lastly, the High Court havingfailed to give any reasons in support of altered conviction exceptsaying in one line that conviction is upheld under Section 302/34IPC in place of Section 302/149 IPC, the invoking of Section 34IPC at the appellate stage by the High Court cannot be upheld.[Paras 62 and 63][950-B-E]

A4. As per post-mortem report, both the assault made bythe appellant Nos. 2 and 3 caused simple injury to victim whichdid not result in her death and nor could result in her death.[Para 67][951-A]

5. In case of this nature, when there is fight betweenBthe two groups and where there are gun shots exchanged betweenthe two groups against each other and when on evidence eightco-accused are completely let of and where the State does notpursue their plea of Section 149 IPC against the acquitted eightaccused which attains finality and where the plea of Section 34IPC is not framed against any accused and where even at theCappellate stage no evidence is relied on by the prosecution tosustain the charge of Section 34 IPC qua the three accusedappellants independent of eight acquitted co-accused and whenout of two main accused assailants, one has died and the other isacquitted and lastly, in the absence of any reasoning given by theDHigh Court for sustaining the conviction of the three appellantsin support of alteration of the charge, the two appellants areentitled to claim the benefit of entire scenario and seek alterationof their conviction for commission of the offence punishable underSection 324 IPC simplicitor rather than to suffer conviction underSection 302/34 IPC, if not complete acquittal alike other eightEco-accused. [Para 68][951-B-D]

6. Therefore, appellant Nos. 2 and 3 could at best beconvicted for an offence punishable under Section 324 IPC andnot beyond it on the basis of their individual participation in thecommission of the crime. [Para 69][951-E]FWillie (William) Slaney v. State of M.P. AIR 1956 SC116 : [1955] SCR 1140 – followed.

Kantilal Chandulal Mehta v. State of Maharashtra &Anr. (1969) 3 SCC 166 : [1970] 2 SCR 742 ; KarnailGSingh & Anr. v. State of Punjab AIR 1954 SC 204 :[1954] SCR 904 ; Lachhman Singh & Ors. v. The StateAIR 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. Stateof Rajasthan (2003) 2 SCC 266 : [2003] 1 SCR 49 –Hreferred to.

CRIMINAL APPELLATE JURISDICTION : Criminal AppealNo. 1144 of 2009.

From the Judgment and Order dated 11.02.2008 of the High Courtof Punjab & Haryana at Chandigarh in Criminal Appeal No. 65-DB/1999.

Karan Bharihoke, (A.C.), Sunny Choudhary, Manoj Kumar, Advs.for the Appellants.

Atul Mangla, AAG, Ashish Pandey, Inderjeet (for Dr. MonikaGusain), Advs. for the Respondent.

The Judgment of the Court was delivered by

ABHAY MANOHAR SAPRE, J.

1. This appeal is filed by the three accused persons against thefinal judgment and order dated 11.02.2008 passed by the High Court ofPunjab & Haryana at Chandigarh in Criminal Appeal No.65-DB of 1999whereby the Division Bench of the High Court allowed the appeal inrespect of eight accused persons and acquitted them from the chargesunder Sections 148, 302/149, 323/149 and 506/149 of the Indian PenalCode, 1860 (hereinafter referred to as “IPC”) but dismissed the appealin respect of the three accused persons (appellants herein) and convictedthem under Section 302/34 IPC instead of Section 302/149 IPC.

2. In order to appreciate the controversy involved in this appeal, itis necessary to set out the facts in detail hereinbelow.

3. Eleven (11) accused persons (hereinafter referred to as “A-1to A-11”) were tried for the offences punishable under Sections 148,302/149, 323/149 and 506/149 IPC for committing murder of one lady -Mahendro Bai in Sessions Case No.19 of 1997.

A4. Additional Sessions Judge, Faridabad, by judgment/order dated04.12.1998, convicted all the accused (A-1 to A-11) under Sections 148,302/149, 323/149 and 506/149 IPC and accordingly sentenced them toundergo life imprisonment apart from imposing other lesser sentences.The Additional Sessions Judge held that the prosecution was able toprove the case against all the accused persons (A-1 to A-11) beyondBreasonable doubt and, therefore, all of them deserve to be convictedaccordingly.

5. All the accused persons, namely, Ranjit Singh (A-1), BoorSingh (A-2), Puran Singh (A-3), Balwant Singh (A-4), Inder Singh (A-5), Bagga Singh (A-6), Mala Singh (A-7), Phuman Singh(A-8), KashmiroC(A-9), Laxmi Bai(A-10) and Taro Bai(A-11) were sentenced to sufferrigorous imprisonment for six months under Section 148 IPC, rigorousimprisonment for life and to pay fine of Rs.2,000/- (Rs.Two Thousand)under Section 302/149 IPC, in default of payment of fine to furtherundergo rigorous imprisonment for six months, rigorous imprisonmentDfor three months under Section 323/149 IPC and rigorous Imprisonmentfor six months under Section 506/149 IPC. All the sentences were torun concurrently.

6. All the accused persons (A-1 to A-11) felt aggrieved by theirconviction and sentence and they filed one common criminal appeal inEthe High Court of Punjab & Haryana at Chandigarh (Criminal AppealNo.65-DB of 1999).

7. By impugned order, the High Court allowed the appeal in respectof the eight accused persons, namely, A-1 to A-6, A-10 & A-11 andacquitted them from all the charges whereas dismissed the appeal inFrespect of three accused persons, namely, A-7 to A-9 and accordinglyupheld their conviction by taking recourse to Section 34 IPC. In otherwords, the High Court upheld the conviction under Section 302 readwith Section 34 IPC in place of 302/149 IPC.

8. The three accused persons, namely, Mala Singh(A-7), PhumanGSingh(A-8) and Kashmiro(A-9), who suffered the conviction/sentencefelt aggrieved by the aforesaid order of the High Court and they filed thepresent appeal by way of special leave in this Court.

9. So far as the order of the High Court, which resulted in acquittalof eight accused, namely, A-1 to A-6, A-10 and A-11 is concerned, theState did not challenge their acquittal order and, therefore, this part ofHthe order of the High Court has now attained finality.

10. We are, therefore, not required to examine the legality andcorrectness of this part of the impugned order by which eight co-accused(A-1 to A-6, A-10 and A-11) were acquitted.

11. Learned counsel for the appellants, at the outset, stated thatso far as appellant No.1 - Mala Singh (A-7) is concerned, he expiredduring pendency of the appeal. The appeal of Mala Singh (A-7) (appellantNo.1 herein) therefore, stands abated. His appeal is accordingly dismissedas having abated.

12. We are, therefore, now concerned with the case of twoaccused persons, namely, Phuman Singh(A-8) [appellant No.2 herein]and Smt. Kashmiro(A-9) [appellant No.3 herein].

13. In other words, now we have to examine in this appeal as towhether the High Court was justified in upholding the conviction and thesentence of appellant No.2 (A-8) and appellant No.3 (A-9).

14. In order to examine this question, it is necessary to set out theprosecution case in brief hereinbelow.

15. The death of Mahendro Bai occurred as result of somedisputes between the members of one family. One group consisted ofone branch of brothers, their sons and the wives whereas the othergroup consisted of another branch of brothers, their sons and the wives.The dispute was in relation to the ownership and possession of an ancestralproperty of the family members, i.e., one agricultural land.

16. One Mehar Singh had six brothers. They owned 22 killas ofland. This land was orally partitioned amongst all the brothers 30 yearsback and each brother was cultivating his share. Mehar Singh thenpurchased some other land measuring 2 ½ acres in the same area. Histhree brothers–Mala Singh (A-7), Bagga Singh (A-6) and Inder Singh(A-5) then started demanding their share in this 2 ½ acres of land fromMehar Singh which he refused saying that it was not an ancestral landand, therefore, no need to partition. This became the cause of disputeamong the brothers.

17. On 21.09.1996 at around 12 noon, Mehar Singh, Mal Singh(son of Mehar Singh), Mahendro Bai (wife of Mal Singh-daughter inlaw of Mehar Singh), Dara Singh (son of Mehar Singh) and Palo Devi(wife of Dara Singh) were sitting on the land (field) and talking to eachothers then, Mala Singh (A-7), Inder Singh (A-5) , Bagga Singh (A-6)

ABoor Singh (A-2), Balwant Singh (A-4), Puran Singh (A-3), Ranjit Singh(A-1), Phuman Singh (A-8), Taro Bai (A-11) and Kashmiro(A-9) camethere with weapons (lathi, country made pistol, sword, ballaum) in theirhands.

18. Mala Singh (A-7) gave “Lalkara” saying that they should beBtaught lesson for non-partitioning the land and be finished. This led to afight between the two groups resulting in death of Mahendro Bai andalso causing injuries to Mehar Singh and Palo Bai.

19. This led to registration of the FIR (Ex-PN/2) by Dara Singhfollowed by the investigation. The statements of several persons wereCrecorded, evidence was collected, post-mortem report of the deceasedwas obtained, weapons were seized, FSL report was obtained which ledto arrest of the aforementioned eleven persons.

20. The charge-sheet was filed against all the 11 accused persons(A-1 to A-11). The case was then committed to the Sessions Court forDtrial. The prosecution examined as many as 14 witnesses. All the accusedpersons (A-1 to A-11) were examined under Section 313 of the CriminalProcedure Code, 1973 (hereinafter referred to as “Cr.P.C.). They deniedtheir involvement in the crime.

21. By judgment/order dated 04.12.1998, the Additional SessionsEJudge convicted all the 11 accused persons (A-1 to A-11) under Sections148, 302/149, 323/149 & 506/149 IPC, as detailed above, which gaverise to filing of the criminal appeal by all the 11 accused persons (A-1 toA-11) in the High Court.

22. As mentioned above, the High Court acquitted eight accusedpersons (A-1 to A-6, A-10 & A-11) from all the charges by giving themFbenefit of doubt but upheld the conviction of the present three appellants(A-7 to A-9) under Section 302/34 IPC instead of 302/149 IPC, whichwas awarded by the Additional Sessions Judge. Against this order ofthe High Court, the three accused persons (A-7 to A-9) have felt aggrievedand filed this appeal after obtaining the special leave to appeal in thisGCourt.

23. Heard Mr. Karan Bharihoke, learned amicus curiae, Mr. SunnyChoudhary, learned counsel for the appellants-accused persons and Mr.Atul Mangla, learned Additional Advocate General for the respondent-State.

24. Learned counsel for the appellants (accused persons A-7 toA-9) while assailing the conviction and sentence of the appellantssubmitted that the High Court erred in upholding the conviction of theappellants. His submission was that the High Court should also haveacquitted the appellants herein along with other eight co-accused persons.Learned counsel urged that, in any case, the High Court erred in upholdingthe appellants’ conviction and sentence under Section 302/34 IPC.

25. Learned counsel urged that it was not in dispute that theappellants along with other eight co-accused were originally chargedand eventually convicted also for an offence punishable under Section302 read with Section 149 IPC. With this background, when the matterwas carried in appeal at the instance of all the eleven accused personschallenging their conviction, the only question, which fell for considerationbefore the High Court, was whether the conviction of all the 11 accusedpersons under Section 302/149 is justified or not.

26. Learned counsel urged that the High Court was, therefore,not justified in altering the charge from Section 302 read with Section149 IPC to Section 302 read with Section 34 IPC suo moto and thenwas not justified in upholding the conviction and that too only qua threeaccused persons (appellants herein) and acquitting other eight co-accused.

27. In other words, his submission was that once the chargeswere framed under Section 302/149 IPC against all the 11 accusedpersons which resulted in their conviction under Section 302/149 IPC,the Appellate Court had no jurisdiction to suo moto alter the chargesand convict the appellants under Section 302/34 IPC without giving themany opportunity to meet the altered charge and simultaneously acquittingremaining eight co-accused from the charge of Section 302/149 IPC.

28. Learned counsel urged that assuming that the Appellate Courthad the jurisdiction to alter the charges qua the appellants (A-7 to A-9)only, yet, in his submission, there was no evidence adduced by theprosecution to split the charges only against the present appellants underSection 34 IPC for upholding their conviction under Section 302 IPC.

29. In substance, the submission was against the splitting of thecharges at the appellate stage by the High Court for convicting theappellants under Section 302/34 IPC and acquitting the remaining eightco-accused persons under Section 302/149 IPC but not extending thesimilar benefit of acquittal to the appellants herein.

A30. The last submission of the learned counsel was that, in caseof this nature, the Appellate Court having acquitted the eight co-accusedshould have examined the role of each accused (appellants herein) inthe crime. The reason being, when no case under Section 149 IPC washeld made out qua all the accused persons inasmuch as when eight co-accused stood acquitted under Section 302/149 IPC by the High CourtBand when there was no evidence to sustain the plea of Section 34 againstthe three appellants, the only option available to the Appellate Court wasto examine the role of each appellant individually in the crime in question.

31. It was, therefore, his submission that if the role of the presenttwo appellants is examined in the commission of the crime then it isCclear that the death of Mahendro Bai occurred on account of gun shotinjury hit by Puran Singh (A-3) who stood acquitted and Farsa injuryinflicted by Mala Singh (A-7), who has since died, and not on accountof the injury caused by the present two appellants.

32. Learned counsel pointed out from the evidence that so far asDappellant No.2 - Phuman Singh (A-8) and appellant No. 3-Kashmiro(lady) (A-9) is concerned, both individually hit the deceased with lathiwhich caused one simple injury on the right hand and other on left cheekof the deceased and that too before others could inflict the fatal injuriesto the deceased.E

33. It was, therefore, his submission that in these circumstances,appellant Nos. 2 and 3 could at best be convicted for an offence punishableunder Section 324 IPC but not beyond it keeping in view the law laiddown by this Court on such question inMohd. Khalil Chistivs.Stateof Rajasthan & Ors.(2013) 2 SCC 541.F

34. Lastly, it was urged that since both these appellants (A-8 &A-9) have already undergone around seven years of jail sentence andwere also released on bail in the year 2009 by this Court and both stillcontinue to be on bail for the last 10 years, the ends of justice would bemet, if both the appellants are awarded the jail sentence of “alreadyGundergone” under Section 324 IPC with any fine amount.

35. Mr. Karan Bharihoke, learned amicus curiae brought to ournotice the legal position, which apply in this case and argued ably bypointing out the evidence and how the legal principle laid down by thisCourt apply to the case at hand. He also submitted his written note.

36. In reply, learned Additional Advocate General for therespondent (State) supported the impugned order and urged that thesame be upheld calling for no interference.

37. Having heard the learned counsel for the parties and learnedamicus curiae, we are inclined to allow the appeal finding force in thesubmissions urged by the learned counsel for the appellants as detailedbelow.

38. Four questions arise for consideration in this appeal-first,whether the High Court was justified in convicting the appellants underSection 302 read with Section 34 IPC when, in fact, the initial trial wason the basis of charge under Section 302 read with Section 149 IPC ?

39. Second, whether the High Court was justified in altering thecharge under Section 149 to one under Section 34 in relation to threeaccused (appellants herein) after acquitting eight co-accused from thecharges of Section 302/149 IPC and then convicting the three accused(appellants herein) on the altered charges under Section 302/34 IPC?

40. Third, whether there is any evidence to sustain the chargeunder Section 34 IPC against the three accused (appellants herein) soas to convict them for an offence under Section 302 IPC ?

41. And Fourth, in case the charge under Section 34 IPC is heldnot made out for want of evidence and further when the charge underSection 149 is already held not made out by the High Court, whether anycase against three accused persons (appellants herein) is made out fortheir conviction and, if so, for which offence ?

42. Before we examine the facts of the case, it is necessary totake note of the relevant sections, which deal with alter of the chargeand powers of the Court/Appellate Court in such cases.

43. Section 216 of Cr.P.C. deals with powers of the Court to alterthe charge. Section 386 of Cr.P.C. deals with powers of the AppellateCourt and Section 464 of Cr.P.C. deals with the effect of omission toframe, or absence of, or error in framing the charge. These Sections arequoted below:

“216. Court may alter charge.

(1) Any Court may alter or add to any charge at any timebefore judgment is pronounced.

A(2) Every such alteration or addition shall be read andexplained to the accused.

(3) If the alteration or addition to charge is such thatproceeding immediately with the trial is not likely, in theopinion of the Court, to prejudice the accused in his defenceBor the prosecutor in the conduct of the case, the Court may,in its discretion, after such alteration or addition has beenmade, proceed with the trial as if the altered or added chargehad been the original charge.

(4) If the alteration or addition is such that proceedingCimmediately with the trial is likely, in the opinion of theCourt, to prejudice the accused or the prosecutor asaforesaid, the Court may either direct new trial or adjournthe trial for such period as may be necessary.

(5) If the offence stated in the altered or added charge isDone for the prosecution of which previous sanction isnecessary, the case shall not be proceeded with until suchsanction is obtained, unless sanction had been alreadyobtained for prosecution on the same facts as those onwhich the altered or added charge is founded.

E386. Powers of the Appellate Court. After perusing suchrecord and hearing the appellant or his pleader, if heappears, and the Public Prosecutor if he appears, and incase of an appeal under section 377 or section 378, theaccused, if he appears, the Appellate Court may, if itFconsiders that there is no sufficient ground for interfering,dismiss the appeal, or may-

(a) in an appeal from an order of acquittal, reverse suchorder and direct that further inquiry be made, or that theGaccused be re-tried or committed for trial, as the casemay be, or find him guilty and pass sentence on himaccording to law;

(b) in an appeal from conviction-

(i) reverse the finding and sentence and acquit ordischarge the accused, or order him to be re-tried by aCourt of competent jurisdiction subordinate to suchAppellate Court or committed for trial, or

(ii) alter the finding, maintaining the sentence, or

(iii) with or without altering the finding, alter the natureor the extent, or the nature and extent, of the sentence,but not so as to enhance the Same;

(c) in an appeal for enhancement of sentence-

(i) reverse the finding and sentence and acquit ordischarge the accused or order him to be re-tried by aCourt competent to try the offence, or

(ii) alter the finding maintaining the sentence, or

(iii) with or without altering the finding, alter the natureor the extent, or the nature and extent, of the sentence,so as to enhance or reduce the same;

(d) in an appeal from any other order, alter or reverse suchorder;

(e) make any amendment or any consequential or incidentalorder that may be just or proper;

Provided that the sentence shall not be enhanced unlessthe accused has had an opportunity of showing cause againstsuch enhancement:

Provided further that the Appellate Court shall not inflictgreater punishment for the offence which in its opinion theaccused has committed, than might have been inflicted forthat offence by the Court passing the order or sentenceunder appeal.

464. Effect of omission to frame, or absence of, or error in,charge.

A(1) No finding, sentence or order by Court of competentjurisdiction shall be deemed invalid merely on the groundthat no charge was framed or on the ground of any error,omission or irregularity in the charge including anymisjoinder of charges, unless, in the opinion of the Courtof appeal, confirmation or revision, failure of justice hasBin fact been occasioned thereby.

(2) If the Court of appeal, confirmation or revision is ofopinion that failure of justice has in fact been occasioned,it may-

(a) in the case of an omission to frame charge, orderthat charge be framed and that the trial berecommenced from the point immediately after theframing of the charge;

(b) in the case of an error, omission or irregularity inDthe charge, direct new trial to be had upon chargeframed in whatever manner it thinks fit:

Provided that if the Court is of opinion that the facts of thecase are such that no valid charge could be preferred againstthe accused in respect of the facts proved, it shall quash

Ethe conviction.”

44. Combined reading of Sections 216, 386 and 464 of Cr.P.C.would reveal that an alteration of charge where no prejudice is causedto the accused or the prosecution is well within the powers and thejurisdiction of the Court including the Appellate Court.F

45. In other words, it is only when any omission to frame thecharge initially or till culmination of the proceedings or at the appellatestage results in failure of justice or causes prejudice, the same mayresult in vitiating the trial in appropriate case.

46. The Constitution Bench of this Court examined this issue, forGthe first time, in the context of old Criminal Procedure Code in casereported in Willie (William) Slaneyvs. State of M.P.(AIR 1956 SC116).

47. Learned Judge Vivian Bose J. speaking for the Bench in hisinimitable style of writing held, “Therefore, when there is chargeHand there is either error or omission in it or both, and whatever its

nature, it is not to be regarded as material unless two conditions arefulfilled both of which are matters of fact: (1) the accused has ‘infact’ been misled by it ‘and’ (2) it has occasioned failure of justice.That, in our opinion, is reasonably plain language.”

48. InKantilal Chandulal Mehtavs.State of Maharashtra &Anr.(1969) 3 SCC 166, this Court again examined this very issue arisingunder the present Code of Criminal Procedure with which we areconcerned in the present case. Justice P. Jaganmohan Reddy, speakingfor the Bench after examining the scheme of the Code held inter alia“In our view the Criminal Procedure Code gives ample power tothe courts to alter or amend charge whether by the trial court orby the appellate court provided that the accused has not to face acharge for new offence or is not prejudiced either by keeping himin the dark about that charge or in not giving full opportunity ofmeeting it and putting forward any defence open to him, on thecharge finally preferred against him.”49. Now coming to the question regarding altering of the chargefrom Section 149 to Section 34 IPC read with Section 302 IPC, thisquestion was considered by this Court for the first time in the case ofLachhman Singh & Ors.vs. The State(AIR 1952 SC 167) whereJustice Fazl Ali speaking for the bench held as under:

“It was also contended that there being no chargeunder section 302 read with section 34 of the Indian PenalCode, the conviction of the appellants under section302 read with section 149 could not have been altered bythe High Court to one under section 302 read with section34, upon the acquittal of the remaining accused persons.The facts of the case are however such that the accusedcould have been charged alternatively, either under section302 read with section 149 or under section 302 readwith section 34. The point has therefore no force.”

50. This question was again examined by this Court in KarnailSingh & Anr.vs. State of Punjab(AIR 1954 SC 204) wherein thelearned Judge Venkatarama Ayyar,J. elaborating the law on the subjectheld as under:

“(7) Then the next question is whether the conviction ofthe appellant under section 302 read with section 34, when

Athey had been charged only, under section 302 readwith section 149, was illegal The contention of theappellants is that the scope of section 149 is different fromthat of section 34, that while what section 149 requires isproof of common object, it would be necessaryunder section 34 to establish common intention and thatBtherefore when the charge against the accused isunder section 149, it cannot be converted in appeal intoone under section 34. The following observations of thiscourt in Dalip Singh v. State of Punjab, AIR 1953 SC 364were relied on in support of this position :-

“Nor is it possible in this case to have recourseto section 34 because the appellants have not beencharged with that even in the alternative and thecommon intention required by section 34 and thecommon object required by section 149 are far fromDbeing the same thing.”

It is true that there is substantial difference between thetwo sections but as observed by Lord Sumner in BarendraKumar Ghosh v. Emperor, AIR 1925 PC 1, they also tosome extent overlap and it is question to be determinedEon the facts of each case whether the charge under section149 overlaps the ground covered by section 34. If thecommon object which is the subject matter of the chargeunder section 149 does not necessarily involve commonintention, then the substitution of section 34 for section149 might result in prejudice to the accused and ought notFtherefore to be permitted. But if the facts to be proved andthe evidence to be adduced with reference to the chargeunder section 149 would be the same ‘if the charge wereunder section 34, then the failure to charge the accusedunder section 34 could not result in any prejudice and inGsuch cases, the substitution of section 34 for section149 must be held to be formal matter.

We do not read the observations in Dalip Singh v. State, ofPunjab(1) as an authority for the broad proposition that inlaw there could be no recourse to, section 34 when thecharge is only under section 149. Whether such recourse

can be had or not must depend on the facts of each case.This is in accord with the view taken by this courtin Lachhman Singh v. The State (1), where the substitutionof section 34 for section 149 was upheld on the ground thatthe facts were such

“that the accused could have been charged alternativelyeither under section 302 read with section 149, orunder section 302read with section 34.”

51. The law laid down in Lachman Singh(supra) and KarnailSingh(supra) was reiterated inWillie (William) Slaney(Supra) whereinJustice Vivian Bose speaking for the Bench while referring to these twodecisions held as under:

“(49). The following cases afford no difficulty because theydirectly accord with the view we have set out at lengthabove. In Lachman Singh v. The State, AIR 1952 SC 167, itwas held that when there is charge under section 302 ofthe Indian Penal Code read with section 149 and the chargeunder section 149 disappears because of the acquittal ofsome of the accused, conviction under section 302 of theIndian Penal Code read with section 34is good even thoughthere is no separate charge under section 302 readwith section 34, provided the accused could have been socharged on the facts of the case.

The decision in Karnail Singh v. The State of Punjab, AIR1954 SC 204 is to the same effect and the question aboutprejudice was also considered.”

52. This principle of law was then reiterated after referring to lawlaid down in Willie (William) Slaney(Supra) in the case reported inChittarmal vs.State of Rajasthan(2003) 2 SCC 266 in the followingwords:

“14. It is well settled by catena of decisions that section34 as well as section 149 deal with liability for constructivecriminality i.e. vicarious liability of person for acts ofothers. Both the sections deal with combinations of personswho become punishable as sharers in an offence. Thus theyhave certain resemblance and may to some extent

Aoverlap. But clear distinction is made out betweencommon intention and common object in that commonintention denotes action in concert and necessarilypostulates the existence of pre-arranged plan implying aprior meeting of the minds, while common object does notnecessarily require proof of prior meeting of minds or pre-Bconcert. Though there is substantial difference between thetwo sections, they also to some extent overlap and it is aquestion to be determined on the facts of each case whetherthe charge under section 149 overlaps the ground coveredby section 34. Thus, if several persons numbering five orCmore, do an act and intend to do it, both sections34 and section 149 may apply. If the common object doesnot necessarily involve common intention, then thesubstitution of section 34 for section 149 might result inprejudice to the accused and ought not, therefore, to bepermitted. But if it does involve common intention thenDthe substitution of section 34 for section 149 must be heldto be formal matter. Whether such recourse can be hador not must depend on the facts of each case. The nonapplicability of section 149 is, therefore, no bar in convictingthe appellants under section 302 read with section 34 IPC,Eif the evidence discloses commission of an offence infurtherance of the common intention of them all. (SeeBarendra Kumar Ghosh Vs. King Emperor: AIR 1925 PC1; Mannam Venkatadari and others vs. State of AndhraPradesh :AIR 1971 SC 1467; Nethala Pothuraju and othersvs. State of Andhra Pradesh : AIR 1991 SC 2214 and RamFTahal and others vs. State of U.P. : AIR 1972 SC 254)”

53. In the light of the aforementioned principle of law stated bythis Court which is now fairly well settled, we have to now examine theevidence of this case with view to find out as to whether the HighCourt was justified in convicting appellant Nos. 2 and 3 herein forGcommission of offence of murder with the aid of Section 34 IPC whichwas initially not the charge framed against the appellants herein by theSessions Judge.

54. Having perused the entire evidence and legal position governingthe issues arising in the case, we have formed an opinion that the appealH

filed by appellant Nos. 2 and 3 deserves to be allowed and the convictionof appellant Nos. 2 and 3 deserves to be altered to Section 324 IPC.This we say for the following reasons:

55. First, once eight co-accused were acquitted by the High Courtunder Section 302/149 IPC by giving them the benefit of doubt and theiracquittal attained finality, the charge under Section 149 IPC collapsedagainst the three appellants also because there could be no unlawfulassembly consisting of less than five accused persons. In other words,the appellants (3 in number) could not be then charged with the aid ofSection 149 IPC for want of numbers and were, therefore, rightly notproceeded with under Section 149 IPC.

56. Second, keeping in view the law laid down by this Court in thecases referred supra, the High Court though had the jurisdiction to alterthe charge from Section 149 IPC to Section 34 IPC qua the threeappellants, yet, in our view, in the absence of any evidence of commonintention qua the three appellants so as to bring their case within the netof Section 34 IPC, their conviction under Section 302/34 IPC is notlegally sustainable.

57. In other words, in our view, the prosecution failed to adduceany evidence against the three appellants to prove their common intentionto murder Mahendro Bai. Even the High Court while altering the chargefrom Section 149 IPC to Section 34 IPC did not refer to any evidencenor gave any reasons as to on what basis these three appellants couldstill be proceeded with under Section 34 IPC notwithstanding the acquittalof remaining eight co-accused.

58. It was the case of the prosecution since inception that all theeleven accused were part of unlawful assembly and it is this case, theprosecution tried to prove and to some extent successfully before theSessions Judge which resulted in the conviction of all the eleven accusedalso but it did not sustain in the High Court.

59. In our view, the evidence led by the prosecution in support ofcharge under Section 149 IPC was not sufficient to prove the charge ofcommon intention of three appellants under Section 34 IPC though, asmentioned above, on principle of law, the High Court in its appellatejurisdiction could alter the charge from Section 149 to Section 34 IPC.

60. Section 34 IPC does not, by itself, create any offence whereasit has been held that Section 149 IPC does. As mentioned above, the

Aprosecution pressed their case since inception and accordingly adducedevidence against all the accused alleging that all were the members ofunlawful assembly under Section 149 IPC and not beyond it. The SessionsCourt, therefore, rightly framed charge to that effect.

61. If the prosecution was successful in proving this charge in theBSessions Court against all the accused persons, the prosecution failed inso proving in the High Court.

62. The prosecution, in our view, never came with case that allthe 11 accused persons shared common intention under Section 34IPC to eliminate Mahendro Bai and nor came with case even at theCappellate stage that only 3 appellants had shared common intentionindependent of 8 co-accused to eliminate Mahendro Bai.

63. When prosecution did not set up such case at any stage of theproceedings against the appellants nor adduced any evidence againstthe appellants that they (three) prior to date of the incident had at anyDpoint of time shared the “common intention” and in furtherance of sharingsuch common intention came on the spot to eliminate Mahendro Bai andlastly, the High Court having failed to give any reasons in support ofaltered conviction except saying in one line that conviction is upheldunder Section 302/34 IPC in place of Section 302/149 IPC, the invokingof Section 34 IPC at the appellate stage by the High Court, in our view,Ecannot be upheld.64. True it is that “Lalkara” was given by Mala Singh - appellantNo.1 (since dead) but it was not to eliminate Mahindrao Bai - thedeceased.

65. Learned counsel for the respondent(State) was not able toFpoint out any evidence that the appellants ever shared common intentionto eliminate Mahendro Bai independent of acquitted eight accused. Weare, therefore, unable to find any basis to sustain the conviction of theappellants under Section 302 read with Section 34 IPC for want of anyevidence of the prosecution.G

66. Now we come to the next issue. It has come in evidence thatMala Singh(A-7) hit with Farsa and Puran Singh(A-3) fired gun shotwhich hit Mahendro Bai. As per post-mortem report, Mahendro Baidied due to gun shot injury. So far as the role of appellant Nos. 2 and 3in the crime is concerned, both hit single blow - one on hand and otherHon cheek of Mahendro Bai prior to other two accused-Mala Singh andPuran Singh inflicting their assault on her.

67. As per post-mortem report, both the assault made by theappellant Nos. 2 and 3 caused simple injury to Mahendro Bai which didnot result in her death and nor could result in her death. (see injury Nos.2 and 3 in the evidence of PW-3 Dr. P.S. Parihar)

68. In case of this nature, when there is fight between the twogroups and where there are gun shots exchanged between the two groupsagainst each other and when on evidence eight co-accused arecompletely let of and where the State does not pursue their plea ofSection 149 IPC against the acquitted eight accused which attains finalityand where the plea of Section 34 IPC is not framed against any accusedand where even at the appellate stage no evidence is relied on by theprosecution to sustain the charge of Section 34 IPC qua the three accusedappellants independent of eight acquitted co-accused and when out oftwo main accused assailants, one has died and the other is acquitted andlastly, in the absence of any reasoning given by the High Court forsustaining the conviction of the three appellants in support of alterationof the charge, we are of the considered view that the two appellants areentitled to claim the benefit of entire scenario and seek alteration of theirconviction for commission of the offence punishable under Section 324IPC simplicitor rather than to suffer conviction under Section 302/34IPC, if not complete acquittal alike other eight co-accused.

69. We are, therefore, of the considered opinion that appellantNos. 2 and 3 could at best be convicted for an offence punishable underSection 324 IPC and not beyond it on the basis of their individualparticipation in the commission of the crime.

70. Learned counsel for the appellants then stated that out of thetotal jail sentence awarded, appellant Nos. 2 and 3 has already undergonearound seven years of jail sentence when both were released on bail byorders of this Court on 07.07.2009. So far as the appellant No. 3 isconcerned, she is an aged lady.

71. Taking into consideration the fact that the appellants Nos. 2and 3 have already undergone seven years of jail sentence and appellantNo. 3 is an aged lady and is also on bail for the last 10 years and thatboth did not breach any condition of the bail in last the 10 years, we areinclined to allow the appeal and while setting aside the conviction andsentence of the appellant Nos. 2 and 3 under Section 302/34 IPC, converttheir conviction under Section 324 IPC and sentence them to what theyhave “already undergone” and impose fine of Rs.10,000/- on each

Aappellant and in default in payment of fine, to further undergo threemonths’ simple imprisonment.

72. In other words, the appellants (Nos.2 & 3) need not undergoany jail sentence than what they have already undergone provided eachof the appellants deposit Rs.10,000/- as fine amount within three monthsBfrom the date of this order else both the appellants will have to undergothree months simple imprisonment in default of non-deposit of fine amount.

73. Before parting, we place on record word of appreciation forthe valuable services rendered by Mr. Karan Bharihoke amicus curiaeappointed by this Court. He argued the case ably and fairly and alsoCfiled effective written submissions, which enabled us to examine theissue involved in this appeal properly.

74. The appeal thus succeeds and is allowed in part. The impugnedorder is modified to the extent indicated above.

DAnkit Gyan

Appeal partly allowed.