It is not necessary to charge and convict the accused under S. 147 or S. 148 before convicting them under S. 302/149.

Judgement

HIDAYATULLAH, J.: In these two appeals by nine persons, who have been convicted under S. 302/149, Indian Penal Code, special leave is limited to one question of law, namely, whether the accused could be legally convicted under the above sections when they were not charged and convicted under S. 147 or S. 148 of the Indian Penal Code? It appears from the judgment under appeal that there was a difference of opinion on this point in the High Court at Patna and the appeals in the High Court were disposed of by a Full Bench which held that charges under Ss. 147 and 148 were not necessary before conviction under S. 302, Indian Penal Code could be made with the aid of S. 149, Indian Penal Code.

2. In view of the limited nature of the appeals only the essential facts may be stated. The person who lost his life was one Misari who was related to some of the accused persons. In the past there were other incidents. In 1955 one Ajablal was murdered and some of the present accused were prosecuted but were acquitted. Subsequently, one Baldeo Sharma was murdered and some of the prosecution witnesses in this case were charged with that offence. At the time of the judgment under appeal (August 30, 1962) an appeal was pending in the Patna High Court against the conviction of the accused in that case.

3. The present occurrence took place on April 24, 1958. The prosecution case is that Misari was going in the morning to call labourers when he was attacked by the appellants with diverse weapons. He died as a result of his injuries and a case was registered under S. 302, Indian Penal Code. The appellants were charged at the trial alternatively under Ss. 302/149 and 302/34, Indian Penal Code. The Additional Sessions Judge, Monghyr, convicted three of the appellants on both the charges, sentencing them to imprisonment for life on the first charge only. The remaining accused were acquitted. Appeals by those who were convicted and by the State Government against the acquittal of the others were heard together and were disposed of by the common judgment now under appeal. The appeal of the State Government was allowed and that of the three convicted accused was dismissed. As a result all the original accused were convicted under S. 302/149, Indian Penal Code and were sentenced to imprisonment for life. During the hearing of the appeals a point was raised by the State counsel in the appeal by the State that the trial was bad inasmuch as no charge under S. 147 or S. 148 had been framed. The Divisional Bench \thinking that the point might benefit the convicted accused allowed it to be raised but referred the appeals to a Full Bench in view of an earlier decision on this point with which they did not agree. The Full Bench overruled the earlier decisions and came to the conclusion that it was not obligatory for the validity of the conviction under S. 302/149, Indian Penal Code that a charge under S. 147 or S. 148 should have been framed and a conviction under those sections recorded.

4. The charges against the appellants were as follows:-

"First.-That, you on or about the 24th April 1958 at 7 a.m. at village Jhanjhra P. S. Parbatta, district Monghyr, were members of unlawful assembly, armed with gun, bhala and chhura (dagger) and in prosecution of the common object to murder Misari Sharma you all caused such bodily injury to Misari Sharma, which caused his death, the offence punishable under S. 302, I. P. C. and thereby committed an offence punishable under Section 149/302 of the Indian Penal Code and within the cognizance of Court of Session."

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"That you, on or about the 24th April 1958 at 7 a.m. at village Jhanjhra, P. S. Parbatta, district Monghyr in furtherance of the common intention of you all caused the death of Misari Sharma, intentionally and knowingly, and thereby committed an offence punishable under S. 302/34 of the Indian Penal Code, and within my cognizance and I hereby direct that you be tried by the said Court on the said charge". No