JUDGMENT

KAPADIA, J.

(1)Leave granted.

(2)This criminal appeal by grant of special leave is directed against impugned judgment dated 13.1.06 delivered by the Rajasthan High Court, Jaipur Bench, in D.B. Criminal Appeal No.513/04 converting the conviction under Section 460 IPC imposed by Additional District and Sessions Judge, Jaipur, in Session Case

No.49/2001 into conviction under Section 302 IPC, without the State filing appeal in that regard, on the ground that the trial court had on account of inadvertence convicted the appellant only under Section 460 IPC.

(3)This judgment is a sequel to our judgment in the case of Raju @ Raj Kumar v. State of Rajasthan - Criminal Appeal No. of 2007 arising out of S.L.P. (Crl.) No.4446 of 2006, pronounced today. Therefore, we are not required to restate the case of the prosecution. Suffice it to state that Abdul Aziz (appellant herein) was accused No.1. He was convicted by the trial court under Section 460 IPC. We have extensively quoted the relevant paragraphs of the operative part of the judgment of the trial court in the earlier judgment. On the merits of the case, we find no infirmity with the concurrent findings recorded by the courts below. The evidence of Uttam Prakash (pw.4), who was present at the time when his father was attacked by 10 to 12 persons with knives, was the eye-witness. He had seen the appellant entering the room where the deceased was in conversation with pw.4s aunt. Appellant was named in the FIR. That, evidence of pw.4 is supported by recovery and medical evidence.

(4)Under Section 460 IPC constructive liability is imposed on persons jointly concerned in committing house trespass at night, in the course of which death or grievous hurt is caused. The section applies to persons who actually committed house trespass at night and the act of causing death or grievous hurt by any one of the intruders would make others, who did not cause the injury, equally liable. In the present case, the ingredients of Section 460 IPC are complied with. However, it is contended on behalf of the State that on reading the judgment of the trial court it is clear that the trial court has found Abdul Aziz (appellant herein) guilty of murder and he was liable to be convicted under Section 302 IPC. This point was argued by the State before the High Court in the criminal appeal filed by the appellant herein. It has been held, in the impugned judgment delivered by the High Court, that the trial court had instead of convicting Abdul Aziz (appellant herein) for offence under Section 302 IPC had inadvertently convicted and sentenced him for offence under Section 460 IPC and that considering the evidence on record, the appellant herein was liable to be convicted for an offence under Section 302/149 IPC.

(5)In the present case, we find that the appellant was charged under Section 302, 148, 149 and 460 IPC but the trial court had convicted him only under Section 460 IPC and sentenced to ten years imprisonment. No appeal was filed by the State for enhancement or for conviction under Section 302 IPC and yet in the appeal filed by the appellant the High Court has convicted him under Section 302/149 IPC and sentenced him to life imprisonment.

(6)In the case of Jagdeo v. State of Uttar Pradesh 1953 (51) Allahabad Law Journal 501, a similar situation arose for determination. In that case Jagdeo had moved the High Court in appeal against his conviction under Section 460 IPC. However, the High Court had issued the notice to show cause why the sentence passed against Jagdeo be not enhanced. There is no such notice in this case. In that case Srimati Lalji was found murdered, her ornaments were removed and the appellant (Jagdeo) was convicted under Section 460 and sentenced to 5 years rigorous imprisonment. It was held that if what was alleged against the accused was correct then an offence under Section 302 IPC was made out and in such an event the offence would not come under Section