The central legal point established in the judgment is the application of joint liability under section 34 of the Indian Penal Code, supported by precedents, to attribute criminal responsibility to the accused for their collective actions.

JUDGMENT :

Shree Chandrashekhar, J.

Mohan Sao and Birendra Sao who are convicted and sentenced to imprisonment for life with a fine of Rs. 10,000/- each under section 302 of the Indian Penal Code with a default stipulation to undergo RI for six months have challenged the judgment in Sessions Trial No. 19 of 2014 by filing Criminal Appeal (DB) No. 775 of 2018.

2. Criminal Appeal (DB) No. 976 of 2023 has been filed by Nand Kishor Sao, his wife Leelawati Devi and daughter Sangeeta Kumari who are convicted and sentenced on separate counts for committing the offence under section 324/34 of the Indian Penal Code in the aforementioned sessions trial.

3. Deepak Sao who has been convicted and awarded RI for four years for committing the offence under section 326 of the Indian Penal Code in Sessions Trial No. 19 of 2014 is the appellant in Criminal Appeal (DB) No. 977 of 2023.

4. In Sessions Trial No. 19 of 2014, seven accused were put on trial and twenty witnesses were examined by the prosecution to establish the charge under section 307/149 of the Indian Penal Code against Leelawati Devi, Sangeeta Kumari, Birendra Sao, Mohan Sao, Deepak Sao and Nand Kishor Sao; charge under section 302/149 of the Indian Penal Code against Mohan Sao, Birendra Sao and Deepak Sao and; charge under section 27 of the Arms Act against Birendra Sao, Mohan Sao and Deepak Sao. The aforesaid charges were framed against the above-named accused on 12th March 2013 which they denied and claimed trial.

5. At the outset, this needs a mention that no charge under section 302/34 of the Indian Penal Code was framed against the appellants but if this Court finds that the prosecution brought such evidence which established common intention of the accused, irrespective of whether a specific charge under section 302/34 of the Indian Penal Code was framed or not, conviction of the appellants, namely, Mohan Sao and Birendra Sao can be sustained under section 302/34 of the Indian Penal Code.

6. On the issue of the power of the Criminal Court to convert the conviction of the accused with an aid of section 34 of the Indian Penal Code even where the accused were charged under section 149 of the Indian Penal Code is not in doubt, we may usefully turn to “Dhanna v. State of M.P.” (1996) 10 SCC 79 wherein the Supreme Court discussed the law on the subject, as under:

“6. The learned counsel for the appellants contended that the High Court committed a basic error in seeking the aid of Section 34 IPC for confirming the conviction of the appellants for the offence under Section 302 IPC. So long as the charge framed against them did not mention Section 34 of IPC, the High Court was not justified in using the said provision for convicting the appellants, according to the learned counsel.

7. The High Court found that there was no unlawful assembly as the strength of the assembly was insufficient to constitute it into “unlawful assembly”. But if the Court enters upon a finding that any of the remaining persons who participated in the crime had shared common intention with the main perpetrators of the crime, the Court is not helpless in seeking the aid of Section 34 (IPC) to enter a conviction against such persons arraigned as the accused. This is despite the difference between the scope of Section 34 and Section 149. Yet they have some resemblance between each other and are to some extent overlapping (Barendra Kumar Ghosh v. King Emperor).

8. Legal position on this aspect remained uncertain for a time after this Court rendered a decision in Nanak Chand v. State of Punjab. But the doubt was cleared by a Constitution Bench of this Court in Willie (William) Slaney v. State of M.P., where this Court observed at para 86, thus:

“Sections 34, 114 and 149 of the Penal Code, 1860 provide for criminal liability viewed from different angles as regards actual participants, accessories and men actuated by a common object or a common intention; and the charge is a rolled-up one involving the direct liability and th