2005 Supreme(SC) 1459

2005(7) Supreme 571
Supreme Court of India
(From Punjab and Haryana High Court)
B.N. Agrawal & A.K. Mathur, JJ.
Gurpreet Singh —Appellant
versus
State of Punjab —Respondent
Criminal Appeal No. 711 of 1995
With
Criminal Appeal No. 710 of 1995
Decided on 9-11-2005
Counsel for the Parties :
For the Appearing Parties : Sushil Kumar and P.S. Misra, Sr. Advocates, Suchit Mohanty and Shibashish Misra, Arun K. Sinha, Rakesh Singh and Mukesh Kumar Sinha, Advocates.

Important point
Conviction u/s 302 r/w 34 IPC can be recorded whereas charge simplicitor u/s 302 IPC was framed but evidence proved that murder was committed in prosecution of common intention and no prejudice was caused to accused in absence of specific charge u/s 302/34 IPC.

Headnote:(i) Indian Penal Code, 1860—Section 302—Two appellants convicted under—Four accused including appellants assaulted victim deceased, a college student who was a witness in a case u/s 307 IPC against appellant, with kirpan—PW2 and PW3 were the eye witnesses—Appeal—Post mortem report showed some injuries could have been caused by blunt weapon—Witness stated that victim in order to protect him self was tossing and rolling on ground when he was being assaulted with kirpans by appellants, injuries by blunt force might have been received in that course—Medical evidence thus supported prosecution case—PW2 and PW3 consistently supported prosecution case—Names of witnesses not recorded in substance of information u/s 154 Cr.P.C. but recorded in FIR was no circumstance to create doubt in the case—FIR was registered at 7.15 p.m. and copy reached Magistrate at 0002 hours after copy had been delivered to other senior police officers—It could not be said reached by delay—Conviction called for no interference. (Paras 9 to 12)

       (ii) Indian Penal Code, 1860—Section 302—Two appellants convicted under—Appeal—No evidence that any of two appellants inflicted fatal injury—Sufficient evidence that murder was committed in prosecution of common intention—No prejudice to accused if conviction was converted to one u/s 302/34 IPC even in absence of charge.

       Held : In the present case, it cannot be said that the accused persons were prejudiced merely because charge was framed under Section 302 IPC simpliciter and no charge was framed under Section 302 read with Section 34 IPC. From the evidence of two eyewitnesses, namely, PWs 2 and 3 it would appear that the accused persons shared the common intention to cause death of the victim. They were cross-examined at length from all possible angles and from the suggestions that were put forth to the eyewitnesses, we are fully satisfied that the accused persons were not in any manner prejudiced in their defence. That apart, in their examination under Section 313 of the Code, the appellants were specifically told that they along with other accused persons armed with kirpan came to the place of occurrence and assaulted the deceased whereafter they fled away which shows that appellants shared the common intention to cause death of the deceased. (Para 16)

       (iii) Juvenile Justice Act, 1986—Section 2(h)—Appellant convicted for murder by Courts below—Appeal—Contention that on date of alleged occurrence appellant was a juvenile as he had not attained age of 16 years—Point had not been raised before trial Court or High Court—Report was to be called from trial Court whether accused was juvenile on date of occurrence if legality of conviction was liable to be upheld—If accused was juvenile on such date and continued to be so he shall be sent to juvenile home but he no longer continued to be juvenile, sentence would be liable to be set aside.

       Held : It appears that this point was not raised either before the trial court or the High Court. But it is well settled that in such an eventuality, this Court should first consider the legality or otherwise of conviction of the accused and in case the conviction is upheld, a report should be called for from the trial court on the point as to whether the accused was juvenile on the date of occurrence and upon receipt of the report, if it is found that the accused was juvenile on such date and continues to be so, he shall be sent to juvenile home. But in case it finds that on the date of the occurrence, he was juvenile but on the date this Court is passing final order upon the report received from the trial court, he no longer continues to be juvenile, the sentence imposed against him would be liable to be set aside. Reference in this connection may be made to decision of this Court in the case of Bhoop Ram v. State of U.P. (1989) 3 Supreme Court Cases 1 in which case at the time of grant of special leave to appeal, report was called for from the trial court as to whether the accused was juvenile or not which reported that the accused was not a juvenile on the date of the occurrence but this Court, differing with the report of trial court, came to the conclusion that accused was juvenile on the date the offence was committed and as he was no longer a juvenile on the day of judgment of this Court, sentence awarded against him was set aside, though conviction was upheld. In the present case, we have already upheld conviction of appellant - Mohinder Pal Singh as well but it would be just and expedient to call for a report from the trial court in relation to his age on the date of the occurrence. (Para 18)