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(BEFORE H.K. SEMA AND B.N. SRIKRISHNA, JJ.)
SHIVANANDA MUNDODI - Appellant;
Versus
STATE OF KARNATAKA - Respondent.
With Criminal Appeal No. 1392 of 2004
PADMANABHA - Appellant;
Versus
STATE OF KARNATAKA - Respondent.
Criminal Appeals No. 1130 of 2004 with No. 1392 of 2004, Decided on November 9, 2005
Indian Penal Code, 1860, Sections 325, 109, 302 and 34 -Conversion of sentence- Principal offender convicted under section 302/34 Indian Penal Code - High court converted the conviction of appellant from 302/109 to that of under section 325/109 - No separate charge framed under Ss. 325/109 IPC -Appellant alone cannot be convicted under section 325/109 - Evidence on record also does not make out any offence under section 109 of the Indian Penal Code - Conviction passed against the appellant under section 325/109 Indian Penal Code set aside. [Para 3]
Indian Penal Code, 1860, Sections 325, 109, 302 and 34 – Converting of conviction-
The trial court convicted A-1 and A-2 under Section 302/34 and A3 under S. 302/109 =Sentence of A1 was commuted by the Govt- Appeal of A2 was dismissed- A3 was convicted under Ss, 302/109- High Court converted the conviction of A3 from Ss.302/109 to under Ss,325/109- No separate charge was framed under S.325/109 IPC against A3- The principal offender was convicted under Section 302/34 Indian Penal Code-The appellant alone could not be convicted under Section 325/109 Indian Penal Code- Conviction set aside. [Para 3]
ORDER
Criminal Appeal No. 1392 of 2004
1. Having heard the learned counsel for the appellant at length, we do not find any infirmity in the well-merited concurrent findings of facts made by both the courts below.
2. This appeal being devoid of merits is accordingly dismissed. Criminal Appeal No. 1130 of 2004.
3. Three accused were put to trial. A-1 and A-2 were charged under Sections 302/34 IPC. A-3 was charged under Sections 302/109 IPC. The trial court convicted A-1 and A-2 under Section 302 with the aid of Section 34 IPC and sentenced them to RI for life. A-1 did not prefer any appeal. It is stated at the Bar that the sentence of A-1 has been commuted by the State Government. By a separate order passed today we have dismissed Criminal Appeal No. 1392 of 2004 preferred by A-2.
4. On appeal being preferred by A-3 the High Court has converted the conviction of A-3 from Sections 302/109 IPC to that under Sections 325/109 IPC. In view of the order that we propose to pass, it is not necessary to go into the evidence which has been placed by the learned counsel for both the sides. Suffice it to say that the principal submission of the learned counsel for the appellant that the conviction and sentence of the appellant under Section 325 with the aid of Section 109 IPC cannot be sustained for the reason that there was no separate charge under Sections 325/109 IPC for which he could have been convicted. This submission is fortified by the fact that the principal offender as referred above has been convicted under Sections 302/34 IPC. The appellant alone cannot be convicted under Sections 325/109 IPC for which no separate charge has been framed against him. Even otherwise, I evidence on record also does not make out any offence under Section 109 IPC. In this view of the matter, the conviction passed against the appellant under Sections 325/109 is not sustainable. The conviction passed against the appellant is accordingly set aside. The appellant is on bail, his bail bond and sureties shall stand discharged.
5. The appeal is allowed.
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