convicted them under Section 302/34 IPC instead of Section 302/149 IPC. = 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 Mahendro Bai 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, in our view, cannot be upheld. As per post­mortem report, both the assault made by the appellant Nos. 2 and 3 caused simple injury to Mahendro Bai which did not result in her death and nor could result in her death. (see injury Nos. 2 and 3 in the evidence of PW­3 Dr. P.S. Parihar) 68. 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 co­accused 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 co­accused 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, we are of the considered view that 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 coaccused.= We are, therefore, of the considered opinion that 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.


Hon’ble Mr. Justice Abhay Manohar Sapre

REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1144 OF 2009
Mala Singh & Ors. …Appellants
Versus
State of Haryana …Respondent
J U D G M E N T
Abhay Manohar Sapre, J.

  1. This appeal is filed by the three accused persons
    against the final judgment and order dated 11.02.2008
    passed by the High Court of Punjab & Haryana at
    Chandigarh in Criminal Appeal No.65­DB of 1999
    whereby the Division Bench of the High Court allowed
    the appeal in respect of eight accused persons and
    acquitted them from the charges under Sections 148,
    1
    302/149, 323/149 and 506/149 of the Indian Penal
    Code, 1860 (hereinafter referred to as “IPC”) but
    dismissed the appeal in respect of the three accused
    persons (appellants herein) and convicted them under
    Section 302/34 IPC instead of Section 302/149 IPC.
  2. In order to appreciate the controversy involved in
    this appeal, it is necessary to set out the facts in detail
    hereinbelow.
  3. Eleven (11) accused persons (hereinafter referred
    to as “A­1 to A­11”) 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.
  4. Additional Sessions Judge, Faridabad, by
    judgment/order dated 04.12.1998, convicted all the
    accused (A­1 to A­11) under Sections 148, 302/149,
    323/149 and 506/149 IPC and accordingly sentenced
    them to undergo life imprisonment apart from imposing
    2
    other lesser sentences. The Additional Sessions Judge
    held that the prosecution was able to prove the case
    against all the accused persons (A­1 to A­11) beyond
    reasonable doubt and, therefore, all of them deserve to
    be convicted accordingly.
  5. All the accused persons, namely, Ranjit Singh (A1), Boor Singh (A­2), Puran Singh (A­3), Balwant Singh
    (A­4), Inder Singh (A­5), Bagga Singh (A­6), Mala Singh
    (A­7), Phuman Singh(A­8), Kashmiro (A­9), Laxmi Bai(A10) and Taro Bai(A­11) were sentenced to suffer rigorous
    imprisonment for six months under Section 148 IPC,
    rigorous imprisonment for life and to pay a fine of
    Rs.2,000/­ (Rs.Two Thousand) under Section 302/149
    IPC, in default of payment of fine to further undergo
    rigorous imprisonment for six months, rigorous
    imprisonment for three months under Section 323/149
    IPC and rigorous Imprisonment for six months under
    3
    Section 506/149 IPC. All the sentences were to run
    concurrently.
  6. All the accused persons (A­1 to A­11) felt
    aggrieved by their conviction and sentence and they
    filed one common criminal appeal in the High Court of
    Punjab & Haryana at Chandigarh (Criminal Appeal
    No.65­DB of 1999).
  7. By impugned order, the High Court allowed the
    appeal in respect of the eight accused persons, namely,
    A­1 to A­6, A­10 & A­11 and acquitted them from all the
    charges whereas dismissed the appeal in respect of
    three accused persons, namely, A­7 to A­9 and
    accordingly upheld their conviction by taking recourse
    to Section 34 IPC. In other words, the High Court
    upheld the conviction under Section 302 read with
    Section 34 IPC in place of 302/149 IPC.
  8. The three accused persons, namely, Mala
    Singh(A­7), Phuman Singh(A­8) and Kashmiro(A­9), who
    4
    suffered the conviction/sentence felt aggrieved by the
    aforesaid order of the High Court and they filed the
    present appeal by way of special leave in this Court.
  9. So far as the order of the High Court, which
    resulted in acquittal of eight accused, namely, A­1 to A6, A­10 and A­11 is concerned, the State did not
    challenge their acquittal order and, therefore, this part
    of the order of the High Court has now attained finality.
  10. We are, therefore, not required to examine the
    legality and correctness of this part of the impugned
    order by which eight co­accused (A­1 to A­6, A­10 and
    A­11) were acquitted.
  11. Learned counsel for the appellants, at the outset,
    stated that so far as appellant No.1 ­ Mala Singh (A­7) is
    concerned, he expired during pendency of the appeal.
    The appeal of Mala Singh (A­7) (appellant No.1 herein)
    therefore, stands abated. His appeal is accordingly
    dismissed as having abated.
    5
  12. We are, therefore, now concerned with the case of
    two accused persons, namely, Phuman Singh(A­8)

[appellant No.2 herein]

and Smt. Kashmiro(A­9)

[appellant No.3 herein]

. In other words, now we have to examine in this
appeal as to whether the High Court was justified in
upholding the conviction and the sentence of appellant
No.2 (A­8) and appellant No.3 (A­9). In order to examine this question, it is necessary
to set out the prosecution case in brief hereinbelow. The death of Mahendro Bai occurred as a result
of some disputes between the members of one family.
One group consisted of one branch of brothers, their
sons and the wives whereas the other group consisted of
another branch of brothers, their sons and the wives.
The dispute was in relation to the ownership and
possession of an ancestral property of the family
members, i.e., one agricultural land.
6 One Mehar Singh had six brothers. They owned
22 killas of land. This land was orally partitioned
amongst all the brothers 30 years back and each
brother was cultivating his share. Mehar Singh then
purchased some other land measuring 2 ½ acres in the
same area. His three brothers–Mala Singh (A­7), Bagga
Singh (A­6) and Inder Singh (A­5) then started
demanding their share in this 2 ½ acres of land from
Mehar Singh which he refused saying that it was not an
ancestral land and, therefore, no need to partition. This
became the cause of dispute among the brothers. On 21.09.1996 at around 12 noon, Mehar Singh,
Mal Singh (son of Mehar Singh), Mahendro Bai (wife of
Mal Singh­daughter in law 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 each others
then, Mala Singh (A­7), Inder Singh (A­5) , Bagga Singh
(A­6) Boor Singh (A­2), Balwant Singh (A­4), Puran
7
Singh (A­3), Ranjit Singh (A­1), Phuman Singh (A­8),
Taro Bai (A­11) and Kashmiro(A­9) came there with
weapons (lathi, country made pistol, sword, ballaum) in
their hands. Mala Singh (A­7) gave “Lalkara” saying that they
should be taught lesson for non­partitioning the land
and be finished. This led to a fight between the two
groups resulting in death of Mahendro Bai and also
causing injuries to Mehar Singh and Palo Bai. This led to registration of the FIR (Ex­PN/2) by
Dara Singh followed by the investigation. The
statements of several persons were recorded, evidence
was collected, post­mortem report of the deceased was
obtained, weapons were seized, FSL report was obtained
which led to arrest of the aforementioned eleven
persons. The charge­sheet was filed against all the 11
accused persons (A­1 to A­11). The case was then
8
committed to the Sessions Court for trial. The
prosecution examined as many as 14 witnesses. All the
accused persons (A­1 to A­11) were examined under
Section 313 of the Criminal Procedure Code, 1973
(hereinafter referred to as “Cr.P.C.). They denied their
involvement in the crime. By judgment/order dated 04.12.1998, the
Additional Sessions Judge convicted all the 11 accused
persons (A­1 to A­11) under Sections 148, 302/149,
323/149 & 506/149 IPC, as detailed above, which gave
rise to filing of the criminal appeal by all the 11 accused
persons (A­1 to A­11) in the High Court. As mentioned above, the High Court acquitted
eight accused persons (A­1 to A­6, A­10 & A­11) from all
the charges by giving them benefit of doubt but upheld
the conviction of the present three appellants (A­7 to A9) under Section 302/34 IPC instead of 302/149 IPC,
which was awarded by the Additional Sessions Judge.
9
Against this order of the High Court, the three accused
persons (A­7 to A­9) have felt aggrieved and filed this
appeal after obtaining the special leave to appeal in this
Court. Heard Mr. Karan Bharihoke, learned amicus
curiae, Mr. Sunny Choudhary, learned counsel for the
appellants­accused persons and Mr. Atul Mangla,
learned Additional Advocate General for the respondentState. Learned counsel for the appellants (accused
persons A­7 to A­9) while assailing the conviction and
sentence of the appellants submitted that the High
Court erred in upholding the conviction of the
appellants. His submission was that the High Court
should also have acquitted the appellants herein along
with other eight co­accused persons. Learned counsel
urged that, in any case, the High Court erred in
10
upholding the appellants’ conviction and sentence
under Section 302/34 IPC. Learned counsel urged that it was not in dispute
that the appellants along with other eight co­accused
were originally charged and eventually convicted also for
an offence punishable under Section 302 read with
Section 149 IPC. With this background, when the
matter was carried in appeal at the instance of all the
eleven accused persons challenging their conviction, the
only question, which fell for consideration before the
High Court, was whether the conviction of all the 11
accused persons under Section 302/149 is justified or
not. Learned counsel urged that the High Court was,
therefore, not justified in altering the charge from
Section 302 read with Section 149 IPC to Section 302
read with Section 34 IPC suo moto and then was not
justified in upholding the conviction and that too only
11
qua three accused persons (appellants herein) and
acquitting other eight co­accused. In other words, his submission was that once the
charges were framed under Section 302/149 IPC
against all the 11 accused persons which resulted in
their conviction under Section 302/149 IPC, the
Appellate Court had no jurisdiction to suo moto alter the
charges and convict the appellants under Section
302/34 IPC without giving them any opportunity to
meet the altered charge and simultaneously acquitting
remaining eight co­accused from the charge of Section
302/149 IPC. Learned counsel urged that assuming that the
Appellate Court had the jurisdiction to alter the charges
qua the appellants (A­7 to A­9) only, yet, in his
submission, there was no evidence adduced by the
prosecution to split the charges only against the present
12
appellants under Section 34 IPC for upholding their
conviction under Section 302 IPC. In substance, the submission was against the
splitting of the charges at the appellate stage by the
High Court for convicting the appellants under Section
302/34 IPC and acquitting the remaining eight coaccused persons under Section 302/149 IPC but not
extending the similar benefit of acquittal to the
appellants herein. The last submission of the learned counsel was
that, in a case of this nature, the Appellate Court having
acquitted the eight co­accused should have examined
the role of each accused (appellants herein) in the crime.
The reason being, when no case under Section 149 IPC
was held made out qua all the accused persons
inasmuch as when eight co­accused stood acquitted
under Section 302/149 IPC by the High Court and when
there was no evidence to sustain the plea of Section 34
13
against the three appellants, the only option available to
the Appellate Court was to examine the role of each
appellant individually in the crime in question. It was, therefore, his submission that if the role of
the present two appellants is examined in the
commission of the crime then it is clear that the death
of Mahendro Bai occurred on account of gun shot
injury hit by Puran Singh (A­3) who stood acquitted and
Farsa injury inflicted by Mala Singh (A­7), who has
since died, and not on account of the injury caused by
the present two appellants. Learned counsel pointed out from the evidence
that so far as appellant No.2 ­ Phuman Singh (A­8) and
appellant No. 3­Kashmiro (lady) (A­9) is concerned, both
individually hit the deceased with lathi which caused
one simple injury on the right hand and other on left
cheek of the deceased and that too before others could
inflict the fatal injuries to the deceased.
14 It was, therefore, his submission that in these
circumstances, appellant Nos. 2 and 3 could at best be
convicted for an offence punishable under Section 324
IPC but not beyond it keeping in view the law laid down
by this Court on such question in Mohd. Khalil Chisti
vs. State of Rajasthan & Ors. (2013) 2 SCC 541. Lastly, it was urged that since both these
appellants (A­8 & A­9) have already undergone around
seven years of jail sentence and were also released on
bail in the year 2009 by this Court and both still
continue to be on bail for the last 10 years, the ends of
justice would be met, if both the appellants are awarded
the jail sentence of “already undergone” under Section
324 IPC with any fine amount. Mr. Karan Bharihoke, learned amicus curiae
brought to our notice the legal position, which apply in
this case and argued ably by pointing out the evidence
and how the legal principle laid down by this Court
15
apply to the case at hand. He also submitted his
written note. In reply, learned Additional Advocate General for
the respondent (State) supported the impugned order
and urged that the same be upheld calling for no
interference. Having heard the learned counsel for the parties
and learned amicus curiae, we are inclined to allow the
appeal finding force in the submissions urged by the
learned counsel for the appellants as detailed below. Four questions arise for consideration in this
appeal­first, whether the High Court was justified in
convicting the appellants under Section 302 read with
Section 34 IPC when, in fact, the initial trial was on the
basis of a charge under Section 302 read with Section
149 IPC ? Second, whether the High Court was justified in
altering the charge under Section 149 to one under
16
Section 34 in relation to three accused (appellants
herein) after acquitting eight co­accused from the
charges of Section 302/149 IPC and then convicting the
three accused (appellants herein) on the altered charges
under Section 302/34 IPC? Third, whether there is any evidence to sustain
the charge under Section 34 IPC against the three
accused (appellants herein) so as to convict them for an
offence under Section 302 IPC ? And Fourth, in case the charge under Section 34
IPC is held not made out for want of evidence and
further when the charge under Section 149 is already
held not made out by the High Court, whether any case
against three accused persons (appellants herein) is
made out for their conviction and, if so, for which
offence ? Before we examine the facts of the case, it is
necessary to take note of the relevant sections, which
17
deal with alter of the charge and powers of the
Court/Appellate Court in such cases. Section 216 of Cr.P.C. deals with powers of the
Court to alter the charge. Section 386 of Cr.P.C. deals
with powers of the Appellate Court and Section 464 of
Cr.P.C. deals with the effect of omission to frame, or
absence of, or error in framing the charge. These
Sections are quoted below:
“216. Court may alter charge.
(1) Any Court may alter or add to any charge
at any time before judgment is pronounced.
(2) Every such alteration or addition shall be
read and explained to the accused.
(3) If the alteration or addition to a charge is
such that proceeding immediately with the
trial is not likely, in the opinion of the Court,
to prejudice the accused in his defence or the
prosecutor in the conduct of the case, the
Court may, in its discretion, after such
alteration or addition has been made,
proceed with the trial as if the altered or
added charge had been the original charge.
(4) If the alteration or addition is such that
proceeding immediately with the trial is
likely, in the opinion of the Court, to
18
prejudice the accused or the prosecutor as
aforesaid, the Court may either direct a new
trial or adjourn the trial for such period as
may be necessary.
(5) If the offence stated in the altered or
added charge is one for the prosecution of
which previous sanction is necessary, the
case shall not be proceeded with until such
sanction is obtained, unless sanction had
been already obtained for a prosecution on
the same facts as those on which the altered
or added charge is founded. Powers of the Appellate Court. After
perusing such record and hearing the
appellant or his pleader, if he appears, and
the Public Prosecutor if he appears, and in
case of an appeal under section 377 or
section 378, the accused, if he appears, the
Appellate Court may, if it considers that
there is no sufficient ground for interfering,
dismiss the appeal, or may­
(a) in an appeal from an order of
acquittal, reverse such order and direct
that further inquiry be made, or that the
accused be re­tried or committed for
trial, as the case may be, or find him
guilty and pass sentence on him
according to law;
(b) in an appeal from a conviction­
(i) reverse the finding and sentence
and acquit or discharge the accused,
or order him to be re­tried by a Court
of competent jurisdiction
19
subordinate to such Appellate Court
or committed for trial, or
(ii) alter the finding, maintaining the
sentence, or
(iii) with or without altering the
finding, alter the nature or 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 or discharge the accused
or order him to be re­tried by a Court
competent to try the offence, or
(ii) alter the finding maintaining the
sentence, or
(iii) with or without altering the
finding, alter the nature or 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 such order;
(e) make any amendment or any
consequential or incidental order that
may be just or proper;
Provided that the sentence shall not be
enhanced unless the accused has had an
20
opportunity of showing cause against
such enhancement:
Provided further that the Appellate Court
shall not inflict greater punishment for
the offence which in its opinion the
accused has committed, than might have
been inflicted for that offence by the
Court passing the order or sentence
under appeal. Effect of omission to frame, or absence
of, or error in, charge.
(1) No finding, sentence or order by a Court of
competent jurisdiction shall be deemed
invalid merely on the ground that no charge
was framed or on the ground of any error,
omission or irregularity in the charge
including any misjoinder of charges, unless,
in the opinion of the Court of appeal,
confirmation or revision, a failure of justice
has in fact been occasioned thereby.
(2) If the Court of appeal, confirmation or
revision is of opinion that a failure of justice
has in fact been occasioned, it may­
(a) in the case of an omission to frame a
charge, order that a charge be framed
and that the trial be recommenced from
the point immediately after the framing
of the charge;
(b) in the case of an error, omission or
irregularity in the charge, direct a new
trial to be had upon a charge framed in
whatever manner it thinks fit:
21
Provided that if the Court is of opinion that
the facts of the case are such that no valid
charge could be preferred against the accused
in respect of the facts proved, it shall quash
the conviction.” Combined reading of Sections 216, 386 and 464
of Cr.P.C. would reveal that an alteration of charge
where no prejudice is caused to the accused or the
prosecution is well within the powers and the
jurisdiction of the Court including the Appellate Court. In other words, it is only when any omission to
frame the charge initially or till culmination of the
proceedings or at the appellate stage results in failure of
justice or causes prejudice, the same may result in
vitiating the trial in appropriate case. The Constitution Bench of this Court examined
this issue, for the first time, in the context of old
Criminal Procedure Code in a case reported in Willie
(William) Slaney vs. State of M.P. (AIR 1956 SC 116).
22 Learned Judge Vivian Bose J. speaking for the
Bench in his inimitable style of writing held, “Therefore,
when there is a charge and 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 are
fulfilled both of which are matters of fact: (1) the accused
has ‘in fact’ been misled by it ‘and’ (2) it has occasioned
a failure of justice. That, in our opinion, is reasonably
plain language.” In Kantilal Chandulal Mehta vs. State of
Maharashtra & Anr. (1969) 3 SCC 166, this Court
again examined this very issue arising under the
present Code of Criminal Procedure with which we are
concerned in the present case. Justice P. Jaganmohan
Reddy, speaking for the Bench after examining the
scheme of the Code held inter alia “In our view the
Criminal Procedure Code gives ample power to the courts
23
to alter or amend a charge whether by the trial court or
by the appellate court provided that the accused has not
to face a charge for a new offence or is not prejudiced
either by keeping him in the dark about that charge or in
not giving a full opportunity of meeting it and putting
forward any defence open to him, on the charge finally
preferred against him.” Now coming to the question regarding altering of
the charge from Section 149 to Section 34 IPC read with
Section 302 IPC, this question was considered by this
Court for the first time in the case of Lachhman Singh
& Ors. vs. The State (AIR 1952 SC 167) where Justice
Fazl Ali speaking for the bench held as under:
“It was also contended that there being no
charge under section 302 read with section
34 of the Indian Penal Code, the conviction
of the appellants under section 302 read
with section 149 could not have been altered
by the High Court to one under section
302 read with section 34, upon the acquittal
of the remaining accused persons. The facts
of the case are however such that the
24
accused could have been charged
alternatively, either under section 302 read
with section 149 or under section 302 read
with section 34. The point has therefore no
force.” This question was again examined by this Court
in Karnail Singh & Anr. vs. State of Punjab (AIR 1954
SC 204) wherein the learned Judge Venkatarama
Ayyar,J. elaborating the law on the subject held as
under:
“(7) Then the next question is whether the
conviction of the appellant under section
302 read with section 34, when they had
been charged only, under section 302 read
with section 149, was illegal The contention
of the appellants is that the scope of section
149 is different from that of section 34, that
while what section 149 requires is proof of a
common object, it would be necessary
under section 34 to establish a common
intention and that therefore when the charge
against the accused is under section 149, it
cannot be converted in appeal into one
under section 34. The following observations
of this court in Dalip Singh v. State of
Punjab, AIR 1953 SC 364 were relied on in
support of this position :­
“Nor is it possible in this case to have
recourse to section 34 because the
appellants have not been charged with
25
that even in the alternative and the
common intention required by section
34 and the common object required
by section 149 are far from being the
same thing.”
It is true that there is substantial difference
between the two sections but as observed by
Lord Sumner in Barendra Kumar Ghosh v.
Emperor, AIR 1925 PC 1, they also to some
extent overlap and it is a question to be
determined on the facts of each case whether
the charge under section 149 overlaps the
ground covered by section 34. If the common
object which is the subject matter of the
charge under section 149 does not
necessarily involve a common intention, then
the substitution of section 34 for section
149 might result in prejudice to the accused
and ought not therefore to be permitted. But
if the facts to be proved and the evidence to
be adduced with reference to the charge
under section 149 would be the same ‘if the
charge were under section 34, then the
failure to charge the accused under section
34 could not result in any prejudice and in
such cases, the substitution of section
34 for section 149 must be held to be a
formal matter.
We do not read the observations in Dalip
Singh v. State, of Punjab(1) as an authority
for the broad proposition that in law there
could be no recourse to, section 34 when the
charge 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 court
in Lachhman Singh v. The State (1), where
26
the substitution of section 34 for section
149 was upheld on the ground that the facts
were such
“that the accused could have been
charged alternatively either
under section 302 read with section 149,
or under section 302read with section
34.” The law laid down in Lachman Singh (supra) and
Karnail Singh (supra) was reiterated in Willie (William)
Slaney (Supra) wherein Justice Vivian Bose speaking
for the Bench while referring to these two decisions held
as under:
“(49). The following cases afford no difficulty
because they directly accord with the view
we have set out at length above. In Lachman
Singh v. The State, AIR 1952 SC 167, it was
held that when there is a charge
under section 302 of the Indian Penal Code
read with section 149 and the charge
under section 149 disappears because of the
acquittal of some of the accused, a
conviction under section 302 of the Indian
Penal Code read with section 34is good even
though there is no separate charge
under section 302 read with section 34,
provided the accused could have been so
charged on the facts of the case.
The decision in Karnail Singh v. The
State of Punjab, AIR 1954 SC 204 is to the
27
same effect and the question about prejudice
was also considered.” This principle of law was then reiterated after
referring to law laid down in Willie (William) Slaney
(Supra) in the case reported in Chittarmal vs. State of
Rajasthan (2003) 2 SCC 266 in the following words:
“14. It is well settled by a catena of decisions
that section 34 as well as section 149 deal
with liability for constructive criminality i.e.
vicarious liability of a person for acts of
others. Both the sections deal with
combinations of persons who become
punishable as sharers in an offence. Thus
they have a certain resemblance and may to
some extent overlap. But a clear distinction
is made out between common intention and
common object in that common intention
denotes action in concert and necessarily
postulates the existence of a pre­arranged
plan implying a prior meeting of the minds,
while common object does not necessarily
require proof of prior meeting of minds or
pre­ concert. Though there is substantial
difference between the two sections, they
also to some extent overlap and it is a
question to be determined on the facts of
each case whether the charge under section
149 overlaps the ground covered by section Thus, if several persons numbering five or
more, do an act and intend to do it,
28
both sections 34 and section 149 may apply.
If the common object does not necessarily
involve a common intention, then the
substitution of section 34 for section
149 might result in prejudice to the accused
and ought not, therefore, to be permitted.
But if it does involve a common intention
then the substitution of section
34 for section 149 must be held to be a
formal matter. Whether such recourse can be
had or not must depend on the facts of each
case. The non applicability of section 149 is,
therefore, no bar in convicting the appellants
under section 302 read with section 34 IPC,
if the evidence discloses commission of an
offence in furtherance of the common
intention of them all. (See Barendra Kumar
Ghosh Vs. King Emperor: AIR 1925 PC
1; Mannam Venkatadari and others vs. State
of Andhra Pradesh :AIR 1971 SC
1467; Nethala Pothuraju and others vs. State
of Andhra Pradesh : AIR 1991 SC 2214
and Ram Tahal and others vs. State of U.P. :
AIR 1972 SC 254)” In the light of the aforementioned principle of law
stated by this Court which is now fairly well settled, we
have to now examine the evidence of this case with a
view to find out as to whether the High Court was
justified in convicting appellant Nos. 2 and 3 herein for
commission of offence of murder with the aid of Section
29
34 IPC which was initially not the charge framed against
the appellants herein by the Sessions Judge. Having perused the entire evidence and legal
position governing the issues arising in the case, we
have formed an opinion that the appeal filed by
appellant Nos. 2 and 3 deserves to be allowed and the
conviction of appellant Nos. 2 and 3 deserves to be
altered to Section 324 IPC. This we say for the following
reasons: First, once eight co­accused 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
30
IPC for want of numbers and were, therefore, rightly not
proceeded with under Section 149 IPC. Second, keeping in view the law laid down by this
Court in the cases referred supra, 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 our view, 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. In other words, in our view, the prosecution failed
to adduce any evidence against the three appellants to
prove their common intention to murder Mahendro Bai.
Even the High Court while altering the charge from
Section 149 IPC to Section 34 IPC did not refer to any
evidence nor gave any reasons as to on what basis these
three appellants could still be proceeded with under
31
Section 34 IPC notwithstanding the acquittal of
remaining eight co­accused. It was the case of the prosecution since inception
that all the eleven accused were part of unlawful
assembly and it is this case, the prosecution tried to
prove and to some extent successfully before the
Sessions Judge which resulted in the conviction of all
the eleven accused also but it did not sustain in the
High Court. In our view, the evidence led by the prosecution
in support of charge under Section 149 IPC was not
sufficient to prove the charge of common intention of
three appellants under Section 34 IPC though, as
mentioned above, on principle of law, the High Court in
its appellate jurisdiction could alter the charge from
Section 149 to Section 34 IPC. Section 34 IPC does not, by itself, create any
offence whereas it has been held that Section 149 IPC
32
does. As mentioned above, the prosecution pressed their
case since inception and accordingly adduced evidence
against all the accused alleging that all were the
members of unlawful assembly under Section 149 IPC
and not beyond it. The Sessions Court, therefore,
rightly framed a charge to that effect. If the prosecution was successful in proving this
charge in the Sessions Court against all the accused
persons, the prosecution failed in so proving in the High
Court. The prosecution, in our view, never came with a
case that all the 11 accused persons shared a common
intention under Section 34 IPC to eliminate Mahendro
Bai and nor came with a case even at the appellate
stage that only 3 appellants had shared common
intention independent of 8 co­accused to eliminate
Mahendro Bai.
33 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 Mahendro Bai 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, in our view, cannot
be upheld. True it is that “Lalkara” was given by Mala Singh
­ appellant No.1 (since dead) but it was not to eliminate
Mahindrao Bai ­ the deceased. Learned counsel for the respondent(State) was
not able to point out any evidence that the appellants
34
ever shared common intention to eliminate Mahendro
Bai independent of acquitted eight accused. We are,
therefore, unable to find any basis to sustain the
conviction of the appellants under Section 302 read with
Section 34 IPC for want of any evidence of the
prosecution. Now we come to the next issue. It has come in
evidence that Mala Singh(A­7) hit with a Farsa and
Puran Singh(A­3) fired gun shot which hit Mahendro
Bai. As per post­mortem report, Mahendro Bai died
due to gun shot injury. So far as the role of appellant
Nos. 2 and 3 in the crime is concerned, both hit single
blow ­ one on hand and other on cheek of Mahendro Bai
prior to other two accused­Mala Singh and Puran Singh
inflicting their assault on her. As per post­mortem report, both the assault
made by the appellant Nos. 2 and 3 caused simple
injury to Mahendro Bai which did not result in her
35
death and nor could result in her death. (see injury Nos.
2 and 3 in the evidence of PW­3 Dr. P.S. Parihar) 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 co­accused 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 co­accused 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, we are
36
of the considered view that 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 coaccused. We are, therefore, of the considered opinion that
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. Learned counsel for the appellants then stated
that out of the total jail sentence awarded, appellant
Nos. 2 and 3 has already undergone around seven years
of jail sentence when both were released on bail by
orders of this Court on 07.07.2009. So far as the
appellant No. 3 is concerned, she is an aged lady.
37 Taking into consideration the fact that the
appellants Nos. 2 and 3 have already undergone seven
years of jail sentence and appellant No. 3 is an aged
lady and is also on bail for the last 10 years and that
both did not breach any condition of the bail in last the
10 years, we are inclined to allow the appeal and while
setting aside the conviction and sentence of the
appellant Nos. 2 and 3 under Section 302/34 IPC,
convert their conviction under Section 324 IPC and
sentence them to what they have “already undergone”
and impose a fine of Rs.10,000/­ on each appellant and
in default in payment of fine, to further undergo three
months’ simple imprisonment. In other words, the appellants (Nos.2 & 3) need
not undergo any jail sentence than what they have
already undergone provided each of the appellants
deposit Rs.10,000/­ as fine amount within three
months from the date of this order else both the
38
appellants will have to undergo three months simple
imprisonment in default of non­deposit of fine amount. Before parting, we place on record a word of
appreciation for the valuable services rendered by Mr.
Karan Bharihoke amicus curiae appointed by this Court.
He argued the case ably and fairly and also filed
effective written submissions, which enabled us to
examine the issue involved in this appeal properly. The appeal thus succeeds and is allowed in part.
The impugned order is modified to the extent indicated
above.
………………………………..J.
(ABHAY MANOHAR SAPRE)
..………………………………J.
(R. SUBHASH REDDY)
New Delhi,
February 12, 2019
39