Full Judgment Text
2023INSC887
Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1209 OF 2011
Chandra Pratap Singh … Appellant
versus
State of M.P. … Respondent
J U D G M E N T
ABHAY S. OKA, J.
FACTUAL ASPECTS
This is an appeal by accused no. 2 who has been
1.
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.
Signature Not Verified
Digitally signed by
Anita Malhotra
Date: 2023.10.09
18:06:07 IST
Reason:
Criminal Appeal no. 1209 of 2011 Page 1 of 12
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
nd
to the prosecution case, on 2 June 1987, Vinod Kumar had
taken his brother Munau to village Naugaon by scooter for
medical treatment. As they did not return till 5 pm, Uma
Prasad Khare (deceased), who was the father of Vinod Kumar
Khare and Munau, deputed Naval Kishore (PW1) and Manua
Chammer (PW2) to search his sons. PW1 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
Criminal Appeal no. 1209 of 2011 Page 2 of 12
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 PW1 Naval Kishore and PW2 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.
Another allegation against the appellant is that as per
4.
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 appellantaccused 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
Criminal Appeal no. 1209 of 2011 Page 3 of 12
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 Court. They may have undergone the
entire sentence.
SUBMISSIONS
8. The first submission of the learned senior counsel
appearing for the appellant is that the appellant was not
represented by his advocate when the appeal was called out
for hearing before the High Court. In the cause title of the
impugned judgment, the absence of the appellant's advocate
has been mentioned. Moreover, the judgment does not refer
to any submission made on behalf of any accused. He would,
therefore, submit that the High Court has committed a gross
illegality by proceeding with the hearing of the appeal in the
absence of his advocate.
9. He submitted that in view of the decision of this Court
1
in the case of Mala Singh v. State of Haryana , the
1 ( 2019) 5 SCC 127
Criminal Appeal no. 1209 of 2011 Page 4 of 12
appellant could not have been convicted with the aid of
Section 34 of IPC as there was no evidence of common
intention, which was necessary for attracting Section 34 of
IPC. Moreover, the appellant and other accused ought to
have been put to notice by the High Court that it intended to
modify the charge for invoking Section 34. He submitted that
prejudice has been caused to the appellant by alteration of
the charge apart from the fact that ingredients of Section 34
of IPC were not proved. Hence, the appellant is entitled to
acquittal.
10. The learned counsel appearing for the respondent urged
that from the impugned judgment, it appears that the High
Court has carefully perused the evidence of the prosecution
witnesses. He submitted that in an appeal against conviction,
under Section 386 of the Code of Criminal Procedure, 1973
(for short ‘Cr.PC’) read with Section 216 of Cr.PC, the
Appellate Court, has the power to alter or add the charge
when no prejudice is shown to the accused. He submitted
that there was enough evidence on record to prove the
ingredients of Section 34 of IPC. He invited our attention to
the gravity of the offence and submitted that no interference
is called for.
CONSIDERATION OF SUBMISSIONS
11. The first issue is whether any prejudice was caused to
the appellant, as his appeal was heard in the absence of his
advocate. The cause title of the judgment clearly mentions
Criminal Appeal no. 1209 of 2011 Page 5 of 12
that the advocate representing the appellant was absent. The
order sheet of the appeal preferred by the appellant and two
th
others (Annexure P3) records that on 26 October 2004,
when the appeal preferred by the appellant and two others
was called out, the appellant’s advocate was present. The
rd
appeal was heard on 23 November 2004. The order sheet of
that date records that the advocate for the appellant was
absent. It also notes that the arguments were heard, and
judgment was reserved. The impugned judgment does not
refer to any submission canvassed on behalf of the appellant.
The High Court has, thus, committed illegality by deciding the
appeal against the conviction preferred by the appellant
without hearing the appellant or his advocate. After finding
that the advocate appointed by the appellant was absent, the
High Court ought to have appointed a lawyer to espouse his
cause.
12. In view of the wide powers conferred by Section 386 of
Cr.PC, even an Appellate Court can exercise the power under
Section 216 of altering or adding the charge. However, if the
Appellate Court intends to do so, elementary principles of
natural justice require the Appellate Court to put the accused
to the notice of the charge proposed to be altered or added
when prejudice is likely to be caused to the accused by
alteration or addition of charges. Unless the accused was put
to notice that the Appellate Court intends to alter or add a
charge in a particular manner, his advocate cannot effectively
argue the case. Only if the accused is put to notice by the
Criminal Appeal no. 1209 of 2011 Page 6 of 12
Appellate Court that the charge is intended to be altered in a
particular manner, his advocate can effectively argue that
even the altered charge was also not proved. For example, in
the present case, it was necessary for the Appellate Court to
put the appellant to notice that it intended to convict him
with the aid of Section 34 of IPC, for which a charge was not
framed. We may add here that the Court can give the notice of
the proposed alteration or addition of the charge even by
orally informing the accused or his advocate when the appeal
is being heard. In a given case, the Court can grant a short
time to the advocates for both sides to prepare themselves for
addressing the Court on the altered or added charge.
13. In the facts of the case, the appellant’s advocate was
absent on the date of the hearing. Therefore, there was no
occasion for the High Court to put the advocate for the
appellant to the notice that the charge under Section 302
read with Sections 148 and/or 149 of IPC was proposed to be
altered to a charge under Section 302 read with Section 34 of
IPC. Therefore, grave prejudice has been caused to the
appellant by altering the charge without giving any notice to
the appellant or his advocate about the charge. The reason is
that there was no opportunity available to the accused to
argue that there was no evidence on record to prove the
existence of common intention, which is the necessary
ingredient of Section 34 of IPC. There is one more crucial
aspect of the case. A perusal of the impugned judgment
shows that the High Court has extensively referred to the
Criminal Appeal no. 1209 of 2011 Page 7 of 12
evidence of PW1 Nand Kishore and PW2 Manua. However,
the entire judgment does not mention that the Court was
altering the charge for the reasons recorded. No finding is
recorded in terms of subsection (4) of Section 216 of Cr.PC
that the proposed alteration of the charge will not prejudice
the accused in his defence.
There is no reason recorded in the impugned judgment
14.
to show that Section 34 of IPC was applicable. There is no
discussion on this aspect in the judgment. Only in the
operative part (paragraph 15), without assigning any reasons,
the High Court held that the appellant was liable to be
convicted for the offence punishable under Section 302, read
with Section 34 of IPC. As stated earlier, there is a complete
absence of any reason for concluding that Section 34 of IPC
was attracted. The High Court has not recorded a finding that
there was sufficient evidence to prove that the four accused
who were ultimately convicted had done the criminal act in
furtherance of a common intention.
15. Obviously, the Trial Court’s conviction of the appellant
under Section 302 with the aid of Section 149 of IPC could
not be sustained. As per Section 141 of IPC, unlawful
assembly must be of five or more persons. As the High Court
confirmed the conviction of only four and acquitted all others,
the offence of unlawful assembly was not made out, and
therefore, the offences under Sections 148 and 149 were not
made out.
Criminal Appeal no. 1209 of 2011 Page 8 of 12
16. In the ordinary course, we would have remanded the
appeal to the High Court for a fresh hearing on the ground
that the appellant was not heard before confirming conviction
on a modified charge. However, we cannot ignore that the
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.
2
17. In the case of Chittarmal v. State of Rajasthan , this
Court dealt with the conversion of charge from Section 302
read with Section 149 of IPC, to Section 302, read with
Section 34 of IPC. Paragraph 14 of the said decision reads
thus:
“14. It is well settled by a catena of
decisions that Section 34 as well as
Section 149 deal with liability for
constructive criminality i.e. vicarious
liability of a person for acts of others.
Both the sections deal with combinations
of persons who become punishable as
sharers in an offence. Thus they have a
certain resemblance and may to some
extent overlap.
But a clear distinction is
made out between common intention
and common object in that common
intention denotes action in concert and
necessarily postulates the existence of
a prearranged plan implying a prior
meeting of the minds, while common
object does not necessarily require
proof of prior meeting of minds or
preconcert. Though there is a
2 (2003) 2 SCC 266
Criminal Appeal no. 1209 of 2011 Page 9 of 12
| substantial difference between the two<br>sections, they also to some extent<br>overlap and it is a question to be<br>determined on the facts of each case<br>whether the charge under Section 149<br>overlaps the ground covered by Section<br>34. Thus, if several persons numbering<br>five or more, do an act and intend to do<br>it, both Section 34 and Section 149<br>may apply. If the common object does<br>not necessarily involve a common<br>intention, then the substitution of<br>Section 34 for Section 149 might result<br>in prejudice to the accused and ought<br>not, therefore, to be permitted. But if it<br>does involve a common intention then the<br>substitution of Section 34 for Section 149<br>must be held to be a formal matter.<br>Whether such recourse can be had or not<br>must depend on the facts of each case.<br>The nonapplicability of Section 149 is,<br>therefore, no bar in convicting the<br>appellants under Section 302 read with<br>Section 34 IPC, if the evidence<br>discloses commission of an offence in<br>furtherance of the common intention<br>of them all. (See Barendra Kumar<br>Ghosh v. King Emperor [AIR 1925 PC 1 :<br>26 Cri LJ 431], Mannam<br>Venkatadari v. State of A.P. [(1971) 3 SCC<br>254: 1971 SCC (Cri) 479 : AIR 1971 SC<br>1467] , Nethala Pothuraju v. State of<br>A.P. [(1992) 1 SCC 49: 1992 SCC (Cri) 20:<br>AIR 1991 SC 2214] and Ram<br>Tahal v. State of U.P. [(1972) 1 SCC 136:<br>1972 SCC (Cri) 80: AIR 1972 SC 254])” | |
|---|---|
| (Emphasis added) |
Criminal Appeal no. 1209 of 2011 Page 10 of 12
18. We have carefully perused the evidence of PW1 and
PW2. There is no evidence of the presence of common
intention. Only the act of stopping the deceased Uma Prasad
will not, by itself, bring the case within the purview of Section
34 of IPC. There is no overt act attributed to the appellant by
any prosecution witness in the assault on deceased Uma
Prasad. It is difficult to infer a prior meeting of minds in this
case. There is no material to prove the existence of common
intention which is the necessary ingredient of Section 34 of
IPC. In this case, there is no overlap between a common
object and a common intention. Therefore, the conviction of
the appellant under Section 302, read with Section 34 will
have to be set aside.
19. However, the evidence of two eyewitnesses (PW1 and
PW2) is very consistent on the role played by the appellant in
dragging the dead body of the deceased and throwing the
same into a well. There is hardly any crossexamination on
this aspect of both PW1 and PW2. Therefore, there is every
justification for convicting the appellant for the offence
punishable under Section 201 of IPC of causing the
disappearance of the evidence of the crime. Hence, the
conviction and sentence of the appellant for the offence under
Section 201 of IPC will have to be maintained. The order
th
dated 20 April 2012 passed in this appeal records that the
appellant was enlarged on bail as he remained incarcerated
for about nine years. The appellant was sentenced to undergo
Criminal Appeal no. 1209 of 2011 Page 11 of 12
rigorous imprisonment for five years for the offence under
Section 201 of IPC, which he has already undergone.
Hence, the appeal partly succeeds. We set aside the
20.
appellant's conviction for the offence punishable under
Section 302, read with Section 34 of IPC. However, the
appellant's conviction for the offence punishable under
Section 201 of IPC is confirmed. The appellant has already
undergone the sentence for the said offence. Therefore, the
bail bonds of the appellant stand cancelled.
21. The appeal is allowed on the above terms.
..….……………….J.
(Abhay S. Oka)
....………………...J.
(Pankaj Mithal)
New Delhi;
October 9, 2023.
Criminal Appeal no. 1209 of 2011 Page 12 of 12