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SUPREME COURT OF INDIA
ABHAY S. OKA, PANKAJ MITHAL, JJ.
Chandra Pratap Singh – Appellant
Versus
State of M.P. – Respondent
Criminal Appeal No. 1209 of 2011
Decided On : 09-10-2023
(A) Criminal Procedure Code, 1973 – Sections 216 and 386 – Alteration of charge by Appellate Court – In view of wide powers conferred by Section 386 of Cr.P.C., even Appellate Court can exercise power under Section 216 of altering or adding charge – However, if Appellate Court intends to do so, elementary principles of natural justice require Appellate Court to put accused to notice of charge proposed to be altered or added when prejudice is likely to be caused to accused by alteration or addition of charges – Unless accused was put to notice that Appellate Court intends to alter or add a charge in a particular manner, his Advocate cannot effectively argue the case – Only if accused is put to notice by Appellate Court that charge is intended to be altered in a particular manner, his Advocate can effectively argue that even altered charge was also not proved – Court can give notice of proposed alteration or addition of charge even by orally informing accused or his Advocate when appeal is being heard – In a given case, Court can grant a short time to Advocates for both sides to prepare themselves for addressing Court on altered or added charge. (Para 12)
(B) Indian Penal Code, 1860 – Sections 302/34 and 201 – Criminal Procedure Code, 1973 – Section 216 – Triple murder and disappearance of evidence – Common intention – Conviction and sentence – It was necessary for Appellate Court to put appellant to notice that it intended to convict him with aid of Section 34 of IPC, for which charge was not framed – Grave prejudice has been caused to appellant by altering charge without giving any notice to appellant or his advocate about charge – There is no reason recorded in impugned judgment to show that Section 34 of IPC was applicable – There is complete absence of any reason for concluding that Section 34 of IPC was attracted – As per Section 141 of IPC, unlawful assembly must be of five or more persons – As High Court confirmed conviction of only four and acquitted all others, offence of unlawful assembly was not made out and offences under Sections 148 and 149 were not made out – There is no evidence of presence of common intention – There is no overt act attributed to appellant by any prosecution witness in assault on deceased – It is difficult to infer prior meeting of minds in this case – There is no material to prove existence of common intention which is necessary ingredient of Section 34 of IPC – There is no overlap between a common object and a common intention – Conviction of appellant under Section 302, read with Section 34 will have to be set aside – However, there is every justification for convicting appellant for offence punishable under Section 201 of IPC of causing disappearance of evidence of crime – Conviction and sentence of appellant for offence under Section 201 of IPC will have to be maintained. (Paras 12, 13, 14, 15, 18, 19 and 20)
Facts of the case:
This is an appeal by accused no. 2 who has been convicted by the High Court for the offence punishable under Section 302 read with Section 34 of the Indian Penal Code, 1860. Appellant was also convicted for offence punishable under Section 201 of IPC. For the first offence, he was sentenced to undergo life imprisonment. For second offence under Section 201 of IPC, he was sentenced to undergo rigorous imprisonment for five years.
Findings of Court:
Incident is of 1987, and the present appeal is of 2011. Therefore, it will be unjust to pass an order of remand. Hence, we have examined the evidence on record.
Result : Appeal allowed.
Key Points: - (!) (!) - (!) - (!) (!)
JUDGMENT :
ABHAY S. OKA, J.
FACTUAL ASPECTS
1. This is an appeal by accused no. 2 who has been convicted by the High Court for the offence punishable under Section 302 read with Section 34 of the Indian Penal Code, 1860 (for short ‘IPC’). The appellant was also convicted for the offence punishable under Section 201 of IPC. For the first offence, he was sentenced to undergo life imprisonment. For the second offence under Section 201 of IPC, he was sentenced to undergo rigorous imprisonment for five years.
2. There were 17 accused prosecuted for the offence of triple murder. Out of 17 accused, the Trial Court acquitted accused nos. 3 to 8, 10, 13, 15 and 17. The Trial Court convicted accused nos. 2, 9, 11, 12, and 16 for the offence punishable under Section 302, read with sections 148 and 149 and Section 201 of IPC. Accused Nos. 1 and 14 were convicted for the offence punishable under Section 302 read with Section 148 of IPC. The Trial Court did not frame a charge against any accused for the offence punishable under Section 302 read with Section 34 of IPC. The High Court acquitted accused nos. 9, 11 and 12.
3. The allegation was of the triple murder of Uma Prasad, Vinod Kumar and Munau @ Anant Kishore Khare. According to the prosecution case, on 2nd June 1987, Vinod Kumar had taken his brother Munau to village Naugaon by scooter for medical treatment. As they did not return till 5 p.m. Uma Prasad Khare (Deceased), who was the father of Vinod Kumar Khare and Munau, deputed Naval Kishore (PW-1) and Manua Chammer (PW-2) to search his sons. PW-1 Naval Kishore was the nephew of Uma Prasad. Even Uma Prasad proceeded to search Vinod Kumar and Munau Khare. When they reached Hanuman temple, they saw the accused gathered near the temple with firearms and other arms like farsa, axe and ballam. The appellant-accused no. 2 and accused no. 16 were armed with a spear. The role ascribed to accused nos. 2 and 16 is that they stopped Uma Prasad. As a result, he fell off his bicycle. According to the prosecution case, accused nos. 3, 5 and 7 (acquitted) exhorted the other accused to chop Uma Prasad into pieces. Accused nos. 7, 9 and 11 (acquitted) pointed their guns at PW-1 Naval Kishore and PW-2 Manua and told them not to interfere. The act of assaulting and killing Uma Prasad was allegedly done by accused no. 1 and accused no. 14.
4. Another allegation against the appellant is that as per suggestion of acquitted accused no. 6, he, along with accused no. 1, dragged the body of deceased Uma Prasad and threw the same into a well.
5. Further allegation of the prosecution is that after committing the murder of Uma Prasad, all the accused went towards the bus stand with the intention of killing Vinod Kumar Khare and Munau Khare. It is alleged that after about 15 minutes, the sound of two gun fires was heard, and it is alleged that Vinod Kumar Khare and Munau Khare were killed. As far as the allegation of killing these two persons is concerned, the Trial Court acquitted all the accused and that part of the judgment of the Trial Court has become final.
6. A joint appeal was preferred by accused no. 1, the present appellant-accused no. 2 and accused no. 16. Separate appeals were preferred by the other accused. While partly allowing the appeals, by the impugned Judgment, the High Court acquitted accused nos. 9, 11 and 12. The High Court partly allowed the appeal of the present appellant and accused nos. 1, 14 and 16 by substituting their conviction under Section 302 read with Sections 148 and/or 149 of IPC with Section 302 read with Section 34 of IPC. The appellant's conviction for the offence punishable under Section 201 of IPC was maintained.
7. We may note here that Special Leave Petition (Criminal) No. 876 of 2012 filed by accused no. 1 was dismissed as the said accused did not file proof of surrender. The application for restoration of the Special Leave Petition was also dismissed. It appears that accused nos. 14 and 16 did not prefer any appeal to this Cou
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