2019 Supreme(SC) 153

SUPREME COURT OF INDIA
ABHAY MANOHAR SAPRE, R. SUBHASH REDDY, JJ.
Mala Singh And Others – Appellants
Versus
State Of Haryana – Respondent
Criminal Appeal No. 1144 of 2009
Decided On : 12-02-2019

IMPORTANT POINT
Alteration of charge where no prejudice is caused to accused or prosecution is well within powers and jurisdiction of Court including Appellate Court.

Headnote:(A) Indian Penal Code, 1860 – Sections 302/34 – Murder – Common intention – Life sentence – Once eight co-accused were acquitted by High Court under Section 302/149 IPC by giving them benefit of doubt and their acquittal attained finality, charge under Section 149 IPC collapsed against three appellants also because there could be no unlawful assembly consisting of less than five accused persons – High Court though had jurisdiction to alter charge from Section 149 IPC to Section 34 IPC qua three appellants, yet, in absence of any evidence of common intention qua three appellants so as to bring their case within net of Section 34 IPC, their conviction under Section 302/34 IPC is not legally sustainable – Evidence led by prosecution in support of charge under Section 149 IPC was not sufficient to prove charge of common intention of three appellants under Section 34 IPC – Section 34 IPC does not, by itself, create any offence whereas it has been held that Section 149 IPC does – Appellant Nos. 2 and 3 could at best be convicted for offence punishable under Section 324 IPC and not beyond it on the basis of their individual participation in commission of crime – Impugned order modified. (Paras 55, 56, 57, 59, 69, 71 and 74)

       (B) Indian Penal Code, 1860 – Sections 302/34 – Murder – Common intention – In a case of this nature when there is a fight between two groups and where there are gun shots exchanged between two groups against each other and when on evidence eight co-accused are completely let of and where State does not pursue their plea of Section 149 IPC against acquitted eight accused which attains finality and where plea of Section 34 IPC is not framed against any accused and where even at appellate stage no evidence is relied on by prosecution to sustain charge of Section 34 IPC qua three accused appellants independent of eight acquitted co-accused and when out of two main accused assailants, one has died and other is acquitted and, in absence of any reasoning given by High Court for sustaining conviction of three appellants in support of alteration of charge, two appellants are entitled to claim benefit of entire scenario and seek alteration of their conviction for commission of offence punishable under Section 324 IPC simplicitor rather than to suffer conviction under Section 302/34 IPC, if not complete acquittal alike other eight co-accused. (Para 68)

       (C) Criminal Procedure Code, 1973 – Sections 216, 386 and 464 – Alteration of charge – Alteration of charge where no prejudice is caused to accused or prosecution is well within powers and jurisdiction of Court including Appellate Court – It is only when any omission to frame charge initially or till culmination of proceedings or at appellate stage results in failure of justice or causes prejudice, same may result in vitiating trial in appropriate case. (Paras 44 and 45)

       Facts of Case:

       Murder case. By impugned order, High Court allowed appeal in respect of eight accused persons and acquitted them from all charges whereas dismissed appeal in respect of three accused persons and accordingly upheld their conviction by taking recourse to Section 34 IPC. High Court upheld the conviction under Section 302 read with Section 34 IPC in place of 302/149 IPC.

       Findings of Court:

       Taking into consideration fact that appellants Nos. 2 and 3 have already undergone seven years of jail sentence and appellant No. 3 is an aged lady and is also on bail for last 10 years and that both did not breach any condition of bail in last the 10 years, we are inclined to allow appeal and while setting aside conviction and sentence of appellant Nos. 2 and 3 under Section 302/34 IPC, convert their conviction under Section 324 IPC and sentence them to what they have "already undergone" and impose a fine of Rs. 10,000/- on each appellant and in default in payment of fine, to further undergo three months' simple imprisonment.

       Result : Appeal Partly allowed.