IMPORTANT POINT
If an accused can be convicted u/s 302/34, he can also be convicted u/s 302 simpliciter.

ORDER

Dr. B.S. CHAUHAN, J.

1. This special leave petition has been filed against the judgment and order dated 4.7.2013 passed by the High Court of Punjab and Haryana at Chandigarh in Criminal Appeal No. D-14-DB of 2005, maintaining the conviction and sentence of life imprisonment of the petitioners under Section 302 of Indian Penal Code, 1860 (hereinafter referred to as the ‘IPC’).

2. Facts and circumstances giving rise to this petition are that:

A. As per the case of the prosecution, an FIR No. 69 dated 14.4.2002 was lodged at 1.00 a.m. alleging that five accused persons including the present two petitioners committed the murder of Sarabjit Singh @ Kala. Thus, on the basis of the complaint the case was registered under Sections 148, 302/149 IPC in P.S. Sadar, Phagwara, District Kapurthala.

B. In view thereof, the investigation ensued and after completion of the investigation, a charge sheet was filed against the five accused persons including the present two petitioners under Sections 148, 302/149 and 120-B IPC. The trial was concluded and the learned Sessions Court convicted all the five accused persons including these two petitioners vide judgment and order dated 16.11.2004 for the aforesaid offences and awarded different sentences including life imprisonment under Section 302 IPC.

C. Aggrieved, all the five accused persons preferred Criminal Appeals before the High Court. Accused Pal Singh @ Amarjit Singh, appellant in Criminal Appeal No. D-14-DB of 2005 died during the pendency of the appeals. Thus, his appeal stood abated. Accused Sarabjit Singh and Gurdev Singh @ Manga had been acquitted of the charges under Sections 148 and 302 r/w 149 IPC and the appeal of the present petitioners had been dismissed, and therefore their conviction under Section 302 IPC and the sentences awarded by the trial court remained intact. Hence, this petition.

3. Shri Pramod Swarup, learned senior counsel appearing for the petitioners has vehemently submitted that as one of the accused has died and two have been acquitted by the trial court, the present petitioners had been convicted under Section 302 IPC simpliciter for which no charge had ever been framed. Therefore, the conviction of the petitioners deserves to be set aside. He has also taken us through the judgments of the trial court as well as of the High Court and the relevant evidence to show that none of the petitioners could be held exclusively responsible for the murder of Sarabjit Singh @ Kala. Thus, the petition deserves to be allowed.

4. Both the courts below had considered the evidence on record and the relevant issue for us remains to consider the consequences of not framing the charge properly and none else. Initially, the charges had been framed by the trial court under Sections 302 r/w 34 IPC and Section 120-B IPC against all the accused persons. Fresh charges were subsequently framed under Sections 148, 302, 302/149 and 120-B IPC. Therefore, the ultimate situation remained that there was charge under Sections 302, 302/149 and 120-B IPC. The trial court has convicted the present two petitioners and sentenced them to undergo imprisonment for life and to pay a fine of Rs.2,000/- each. In default of payment of fine to undergo further RI for one month each for the offence punishable under Section 302 IPC. These petitioners also stood convicted and sentenced to undergo RI for a period of two years each and fine of Rs.1000/- each and in default of payment of fine, to undergo further RI for a period of one month each for the offence punishable under Section 148 IPC. However, they have been acquitted of the charge under Section 120-B IPC. The High Court has affirmed the conviction and sentence of the present petitioners under Section 302 IPC, but set aside the conviction under Section 148 IPC. The ultimate result remains that the present two petitioners had been convicted under Section 302 IPC.

5. Whether it is legally permissible in the facts and circumstances of the case to convict thes