Summary
After eight co-accused were finally acquitted, the High Court could in principle substitute common-intention liability for common-object liability, but could not do so without supporting evidence. No common intention to murder was proved against the surviving appellants. Their individual blows caused simple, non-fatal injuries, so their convictions were altered from murder with common intention to Section 324 IPC. Sentence was reduced to imprisonment already undergone, subject to fines; the deceased appellant’s appeal abated.
Issues
- Whether the appellate court could substitute Section 34 for Section 149 IPC and whether the evidence supported that substitution.
- What individual liability and sentence remained for the surviving appellants.
Provisions considered
- Sections 216, 386 and 464, Code of Criminal Procedure, 1973Permitted alteration of charges, including in appeal, subject to the absence of prejudice or failure of justice; appellate authority did not dispense with proof of the altered basis of liability. (¶ 43–52)
- Sections 34 and 149, Indian Penal Code, 1860Common intention and common object are distinct, though their factual bases may overlap; the former had not been proved against the remaining appellants. (¶ 49–65)
- Section 324, Indian Penal Code, 1860The surviving appellants were convicted on their individual participation in inflicting non-fatal injuries rather than constructive liability for murder. (¶ 66–72)
Held
- An appellate court may alter a Section 302/149 charge to Section 302/34 where the facts justify it and no prejudice or failure of justice results. Absence of an original Section 34 charge is not an absolute bar; the evidence must nevertheless establish common intention. (¶ 43–52)
- With eight acquittals final and only three accused remaining on the prosecution case, Section 149 could not sustain liability here. Though substitution of Section 34 was legally possible, neither evidence nor reasons established a common intention of the three to murder the deceased independently of the acquitted accused. (¶ 55–65)
- The two surviving appellants each inflicted a single simple injury before the fatal assaults by others. On their proved individual roles, the proper conviction was under Section 324, not Section 302/34. (¶ 66–69)
- Having undergone about seven years and complied with bail conditions for ten years, the surviving appellants were sentenced to imprisonment already undergone and a fine of Rs.10,000 each payable within three months, with three months’ simple imprisonment in default. Mala Singh’s appeal stood abated on his death. (¶¶ 11–12, 70–74)
Result
Appeal partly allowed for appellants 2 and 3: murder convictions replaced by Section 324 convictions, with imprisonment already undergone and the specified fines/default terms. Appellant 1’s appeal dismissed as abated.