1. Conviction for murder and attempt to murder under Sections 302 and 307, IPC — Challenge to trial consolidation and common intention under Section 34, IPC. (Para 1 , 2 , 3 , 4 , 5 )
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1962 Supreme(SC) 62
SUPREME COURT OF INDIA
14th February, 1962
J.L. KAPUR, A.K. SARKAR AND RAGHUBAR DAYAL, JJ.
Banwari and another, Appellants
Versus
State of U.P., Respondent.
Criminal Appeal No. 80 of 1961.
Advocates appeared
Mr. A. S. R. Chari, Senior Advocate, (M/s. O. P. Rana and K. K. Sinha, Advocates with him), for Appellants; M/s. G. C. Mathur and C. P. Lal, Advocates, for Respondent.
Advocates:
A.S.R.CHARI, C.P.LAL, G.C.MATHUR, K.K.SINHA, O.P.RANA
A.S.R.CHARI, C.P.LAL, G.C.MATHUR, K.K.SINHA, O.P.RANA
A Sessions Judge may consolidate separate committal orders into a joint trial if permitted by the Code of Criminal Procedure. Procedural irregularities are curable under Section 537 CrPC if no prejudice is caused. Mere presence at a crime scene does not establish common intention under Section 34 IPC.
Headnote:(A) Indian Penal Code, 1860 - Sections 302, 307 and 34 - Code of Criminal Procedure, 1898 - Sections 226, 233, 234, 235, 236, 239, 271 and 537 - Consolidation of trials - Joint trial of accused committed under separate committal orders - If the provisions of the Code justify a joint trial (e.g., offences of the same kind committed within twelve months under Section 234 and 239), the Sessions Judge is competent to try the accused at one trial even if there had been separate committal orders. The committal order gives the court cognizance but does not bind the judge to separate trials if a joint trial is legally permissible and no prejudice is caused to the accused. (Paras 25, 26)
(B) Code of Criminal Procedure, 1898 - Section 537 - Curability of procedural irregularities - Where a trial is conducted substantially in the manner prescribed by the Code, but some irregularity occurs (such as recording evidence for multiple trials in the proceedings of only one trial), such a defect does not invalidate the trial provided it does not relate to the competency of the court and no prejudice is caused to the accused. (Paras 19, 28, 29, 30)
(C) Indian Penal Code, 1860 - Section 34 - Common Intention - Mere presence of an accused at the scene of the crime, without evidence of previous concert, motive, or active participation, is insufficient to establish common intention. The fact that an accused did not dissociate himself from the activities of the main perpetrator does not necessarily imply association in the criminal intent, especially when the acts were spontaneous. (Paras 34, 36)
Facts of the case:
Two individuals, one armed with a gun and the other with an axe, were involved in the shooting deaths of two persons and an attempt to kill others. The accused were committed for trial via three separate committal orders for three distinct offences. The trial court consolidated these into one proceeding, recording evidence in only one case and delivering a single judgment. One accused was convicted of murder and attempted murder and sentenced to death. The second accused was convicted for the same offences read with the principle of common intention and sentenced to life imprisonment.
Findings of Court:
The trial court's procedure of consolidating the trials and recording evidence in one case was technically incorrect but curable under the law as no prejudice was caused to the accused. The conviction of the primary shooter was upheld as the evidence supported the charges. However, the conviction of the second accused based on common intention was unsustainable as his mere presence during the spontaneous incidents did not prove a shared criminal intent.
Issues: (1) Whether the consolidation of separate sessions trials and the recording of evidence in a single case vitiated the trial under the Code of Criminal Procedure. (2) Whether the second accused could be convicted under the principle of common intention based solely on his presence during the commission of the offences.
Ratio Decidendi: The court ruled that a Sessions Judge can consolidate separate committal orders if a joint trial is justified under Sections 234 to 239 of the Code of Criminal Procedure. Procedural errors that do not affect the court's competency are curable under Section 537 CrPC. Regarding common intention, the court held that mere presence without evidence of prior concert or motive is insufficient for conviction under Section 34 IPC.
Result: Appeal of the first appellant dismissed; appeal of the second appellant allowed and the latter acquitted.
Legal Category Hierarchy
- crime and sentencing
- practice and procedure
Table of Contents
2. Validity of trial consolidation — Effect of amended charges on accused — Sufficiency of evidence regarding common intention — Severity of death sentence. (Para 13 )
3. Joint trials permissible for same-kind offences within twelve months — Procedural irregularities curable under Section 537, CrPC — Mere presence insufficient to prove common intention. (Para 15 , 16 , 17 , 18 , 19 , 20 , 21 , 22 , 23 , 24 , 25 , 26 , 27 , 28 , 29 , 30 , 31 , 32 , 33 , 34 , 35 , 36 )
4. Joint trials are valid under Sections 234-239, CrPC despite separate committal orders — Procedural defects not affecting competency are curable under Section 537, CrPC. (Para 22 , 23 , 25 , 26 , 29 )
5. Conviction and death sentence of one appellant upheld — Other appellant acquitted of all charges. (Para 37 )
6. Can a Sessions Judge try persons committed under different committal orders in one trial?
Yes, if the provisions of Sections 234 to 239 of the Code of Criminal Procedure justify a joint trial—such as offences of the same kind committed within twelve months—the judge can consolidate proceedings regardless of separate committal orders. (Para 22 , 23 , 25 , 26 )
7. Does the failure to read over charges framed by a Magistrate vitiate a trial?
No, such an omission is a procedural irregularity curable under Section 537 of the Code of Criminal Procedure, provided it is shown that no prejudice resulted to the accused. (Para 19 )
8. Does mere presence at the scene of a crime establish common intention under Section 34, IPC?
No, mere presence without evidence of previous concert, motive, or active association in the criminal activity is insufficient to convict an accused for offences committed in furtherance of common intention. (Para 34 , 35 , 36 )
Judgment
RAGHUBAR DAYAL, J. : Banwari and Ram Charan appeal, by special leave, against the order of the Allahabad High Court dismissing their appeal and confirming their conviction by the II Additional Sessions Judge, Etawah, Banwari was convicted of the offences under S. 302, I. P.C., for committing the murder of Lakhan Singh and Bhagwan Singh and also for an offence under S. 307, I. P.C., for having attempted to commit the murder of Babu Singh. Ram Charan was convicted of the same three offences read with S. 34, I. P. C.
2. The facts leading to the appeal are these. Banwari, a Lodh by caste, and Ram Charan, armed with a gun and axe respectively, passed the field of Lakhan Singh. Lakhan Singh asked Banwari as to where he was going. Banwari replied that he was going for shooting birds. Lakhan Singh turned back. Banwari fired two shots at Lakhan Singh. Lakhan Singh fell down and died.
3. Banwari and Ram Charan, thereafter, proceeded southwards and at a distance of about six or seven furlongs, met Bhagwan Singh, who was grazing his cattle. Bhagwan Singh questioned Banwari as to where he was going. Banwari said he was going to shoot crocodiles in the river. Bhagwan Singh said there were no crocodiles in the river and asked Banwari to go back and look to his work. When Bhagwan Singh turned towards south, Banwari fired a shot at him. Bhagwan Singh sat down. Banwari again fired a shot at him. He further fired two more shots. Bhagwan Singh died.
4. The village people pursued the two appellants and Banwari fired at them. He fired at Babu Singh, but hit Narayan Singh.
5. One report was lodged at the Police Station with respect to these incidents. The police, after enquiry, sent up three charge-sheets under S. 173, Criminal P. C. The Magistrate registered three cases, one with respect to the murder of Lakhan Singh another with respect to the murder of Bhagwan Singh and the third with respect to the offence under S. 307, Penal Code for shooting at Babu Singh and Narayan Singh. Ultimately he committed both the accused for trial to the Sessions Court in each of the cases. Sessions Trials Nos. 34, 37 and 38 of 1960 were registered on the basis of those three committal orders.
6. In the case with respect to the murder of Lakhan Singh, the Magistrate framed one charge under S. 302, Penal Code, against Banwari and another charge against Ram Charan for an offence under S. 302, read with S. 34, Penal Code.
7. In the proceedings with respect to the murder of Bhagwan Singh, he framed one charge against both the accused Banwari and Ram Charan, for an offence under S. 302 read with S. 34, Penal Code.
8. Lastly, in the proceedings under S. 307, Penal Code he again framed a common charge against both the accused for an offence under S. 307 read with S. 34, Penal Code.
9. At the commencement of the hearing of the Sessions Trial No. 34 of 1960 on July 18 1960, on which date presumably the other two Sessions Trials were also fixed for hearing, the learned Sessions Judge framed certain charges describing them as amended charges. In Sessions Trial No. 34 of 1960, he framed a charge against Banwari and Ram Charan for an offence under S. 302 read with S. 34, Penal Code with respect to the murder of Lakhan Singh. In Sessions Trial No. 37 of 1960, he framed an amended charge against Banwari under S. 302, Penal Code for his committing the murder of Bhagwan Singh, in Sesssions Trial No. 38 of 1960 he framed an amended charge against Banwari of an offence under S. 307, Penal Code for having shot at Babu Singh and Narayan Singh with such intention and knowledge and in such circumstances that if by that act he had caused the death he would have been guilty of murder. He read over and explained the amended charges to the accused.
10. In the proceedings of the Court dated July 18, 1960, the learned Sessions Judge noted :
"The amended charge was read out in Court and explained to the prisoner (S. 271, Criminal P. C.) who pleads not guilty.
The S. T. 37/60 and 38/60 are consolid
