Full Judgment Text
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CASE NO.:
Appeal (crl.) 665 of 2007
PETITIONER:
Abdul Aziz
RESPONDENT:
State of Rajasthan
DATE OF JUDGMENT: 03/05/2007
BENCH:
S. H. Kapadia & B. Sudershan Reddy
JUDGMENT:
J U D G M E N T
CRIMINAL APPEAL NO. 665 OF 2007
(Arising out of S.L.P. (Crl.) No.4083 of 2006)
KAPADIA, J.
(1) Leave granted.
(2) This criminal appeal by grant of special leave is
directed against impugned judgment dated 13.1.06
delivered by the Rajasthan High Court, Jaipur Bench, in
D.B. Criminal Appeal No.513/04 converting the
conviction under Section 460 IPC imposed by Additional
District and Sessions Judge, Jaipur, in Session Case
No.49/2001 into conviction under Section 302 IPC,
without the State filing appeal in that regard, on the
ground that the trial court had on account of
inadvertence convicted the appellant only under Section
460 IPC.
(3) This judgment is a sequel to our judgment in the
case of Raju @ Raj Kumar v. State of Rajasthan -
Criminal Appeal No. of 2007 arising out of S.L.P.
(Crl.) No.4446 of 2006, pronounced today. Therefore, we
are not required to restate the case of the prosecution.
Suffice it to state that Abdul Aziz (appellant herein) was
accused No.1. He was convicted by the trial court under
Section 460 IPC. We have extensively quoted the relevant
paragraphs of the operative part of the judgment of the
trial court in the earlier judgment. On the merits of the
case, we find no infirmity with the concurrent findings
recorded by the courts below. The evidence of Uttam
Prakash (pw.4), who was present at the time when his
father was attacked by 10 to 12 persons with knives, was
the eye-witness. He had seen the appellant entering the
room where the deceased was in conversation with pw.4’s
aunt. Appellant was named in the FIR. That, evidence of
pw.4 is supported by recovery and medical evidence.
(4) Under Section 460 IPC constructive liability is
imposed on persons jointly concerned in committing
house trespass at night, in the course of which death or
grievous hurt is caused. The section applies to persons
who actually committed house trespass at night and the
act of causing death or grievous hurt by any one of the
intruders would make others, who did not cause the
injury, equally liable. In the present case, the ingredients
of Section 460 IPC are complied with. However, it is
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contended on behalf of the State that on reading the
judgment of the trial court it is clear that the trial court
has found Abdul Aziz (appellant herein) guilty of murder
and he was liable to be convicted under Section 302 IPC.
This point was argued by the State before the High Court
in the criminal appeal filed by the appellant herein. It
has been held, in the impugned judgment delivered by
the High Court, that the trial court had instead of
convicting Abdul Aziz (appellant herein) for offence under
Section 302 IPC had inadvertently convicted and
sentenced him for offence under Section 460 IPC and
that considering the evidence on record, the appellant
herein was liable to be convicted for an offence under
Section 302/149 IPC.
(5) In the present case, we find that the appellant was
charged under Section 302, 148, 149 and 460 IPC but
the trial court had convicted him only under Section 460
IPC and sentenced to ten years imprisonment. No appeal
was filed by the State for enhancement or for conviction
under Section 302 IPC and yet in the appeal filed by the
appellant the High Court has convicted him under
Section 302/149 IPC and sentenced him to life
imprisonment.
(6) In the case of Jagdeo v. State of Uttar Pradesh \026
1953 (51) Allahabad Law Journal 501, a similar
situation arose for determination. In that case Jagdeo
had moved the High Court in appeal against his
conviction under Section 460 IPC. However, the High
Court had issued the notice to show cause why the
sentence passed against Jagdeo be not enhanced. There
is no such notice in this case. In that case Srimati Lalji
was found murdered, her ornaments were removed and
the appellant (Jagdeo) was convicted under Section 460
and sentenced to 5 years rigorous imprisonment. It was
held that if what was alleged against the accused was
correct then an offence under Section 302 IPC was made
out and in such an event the offence would not come
under Section 460 IPC. We quote hereinbelow the
relevant portion of the said judgment which reads as
under:
"On the facts of this particular case, the
provisions of Section 460 are not applicable for
another reason. It is not disputed that Section
460, I. P. C. will not apply to the case of a
single individual who alone commits lurking
house trespass and during such commission
causes or attempts to cause death or grievous
hurt to any person, and there is very little
evidence led about others joining the accused
in the commission of this offence.
There may arise a case in which several
persons commit lurking house-trespass and
someone among them causes or attempts to
cause death or grievous hurt. In such a case it
cannot be said that any particular person
committed those acts and it might be possible,
as held in -- ’Mohammada v. Emperor’, AIR
1936 Lah 911 (B), that all of them be liable to
conviction under Section 460, I. P. C.
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Of the cases referred to, the actual
person, who while committing lurking house-
trespass also caused or attempted to cause
death or grievous hurt, was convicted in --
’Queen v. Lukhun Doss, (1865) 2 WR Crl. 52
(A)’ and in -- ’Faiz Bakhsh v. Emperor’, 48
Cr.L.J. 269, without any discussion as to
whether his case really came within that
section or not. In the case reported in --
’Queen - Empress v. Ismail Khan’, ILR 8 All
649 (D) an observation has been made without
any discussion to the effect:
"Sections 459 and 460 provide for a
compound offence, the governing incident
of which is that either ’a lurking house-
trespass’ or ’house-breaking’ must have
been completed, in order to make a
person who accompanies that offence
either by causing grievous hurt or
attempt to cause death or grievous hurt
responsible under those sections."
It was actually decided in that case that the
accused had not committed lurking house-
trespass or house-breaking and, therefore,
their conviction under Sections 459 and 460, I.
P. C. could not be maintained.
The case reported in ’Chatur v. King
Emperor’, 8 All LJ 574 (E) is very apposite to
the present case. One person had entered a
house, attempted to rob a girl of a ’hansli’ and
stabbed her father to death when he seized the
thief. He was convicted by the sessions court
of an offence under Section 460, I. P. C. and
was sentenced to transportation for life. On
appeal his conviction was altered to Section
302, I. P. C., and in the exercise of revisional
jurisdiction the sentence of transportation for
life was enhanced to a sentence of death.
Richards, J., who delivered the judgment -
observed while interpreting Section 460, I. P.
C.:
"In our opinion this section was intended
to provide for the punishment of persons
who are jointly concerned in the
committing of the house-trespass or
house-breaking altogether irrespective
whether they were the persons who
caused or attempted to cause death or
grievous hurt."
This may be interpreted to mean that Section
460 provided for the punishment of the person
who actually caused or attempted to cause
death or grievous hurt while committing
lurking house-trespass or house-breaking.
But the observation just following the aforesaid
quoted remarks makes it clear that the section
would apply to the associates of such actual
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offender.
We cannot now alter the conviction of the
appellant to Section 302, I. P. C., and enhance
sentence in the exercise of revisional
jurisdiction, in case we come to the conclusion
on hearing full arguments that the appellant
did murder her in view of the Full Bench
decision in -- ’Taj Khan v. Rex’, AIR 1952 All
369 (FB) (F)." (emphasis supplied)
(7) In re Singaram and another \026 AIR 1954 Madras
152, the case was concerning murder and robbery. The
accused were charged and tried for offences under
Section 302/34 IPC. The trial court convicted them
under Section 460 IPC and, therefore, the State filed an
appeal questioning the correctness of acquittal under
Section 302/34 IPC. It was held in that case that the
trial court had wrongly convicted the accused under
Section 460 IPC; that their acquittal by the trial court
under Section 302/34 IPC was erroneous and
accordingly each of the appellants was sentenced for life
imprisonment. The sentence of seven years imposed by
the trial court for offence under Section 460 IPC was set
aside. However, it is important to note that in the said
case appeals were filed by the State and it is in those
appeals that the accused were convicted under Section
302/34 IPC and sentenced to life imprisonment. In the
present case, there is no such an appeal. In the present
case, appeal has been filed before the High Court by
Abdul Aziz (appellant herein) and not by the State.
Before us appeal has been filed by Abdul Aziz. In the
circumstances, the High Court was wrong in convicting
Abdul Aziz for an offence under Section 302 IPC when the
trial court had convicted him under Section 460 IPC,
particularly, in the absence of any appeal from the State.
(8) In the case of Sohan Singh Kesar Singh v. State of
Punjab \026 AIR 1964 Punjab 130, Sohan Singh was
convicted under Sections 302, 380 and 457 IPC; he was
sentenced to death under Section 302 IPC and to
rigorous imprisonment for three years under each of the
Sections 457 and 380 IPC. Sohan Singh preferred an
appeal against his conviction and sentence. One of the
arguments advanced on behalf of Sohan Singh was that
the offence in question fell within the purview of Section
460 IPC and not under Section 302 IPC. It was argued
that while committing the offence of house-breaking by
night death of the child was caused and, therefore, the
accused could be punished only under Section 460 IPC.
It was in the context of this argument that the High
Court held as follows:
"Section 460 merely provides for
constructive liability of persons committing or
corcerned in, ’inter alia’ house-breaking by
night in the course of which death is caused
by one of the offenders and it prescribes
enhanced penalty for the joint offenders. To
attract this section it matters little as to who
actually causes the death, for, everyone jointly
concerned in committing the house-breaking is
liable to the enhanced penalty under this
section if death is caused in the course of the
offence, no matter who is really responsible for
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the death. It does not, as indeed it cannot, be
considered to serve as an exception to Section
302, Indian Penal Code. If a person committing
house-breaking by night also actually commits
murder he must attract the penalty for this
latter offence under Section 302 and I find it
almost impossible to hold that he can escape
the punishment provided for murder merely
because the murder was committed by him
while he was committing the offence of house-
breaking, and that he can only be dealt with
under Section 460. Neither the language of
Section 460 nor the scheme of Indian Penal
Code nor logic and common sense would seem
to support this contention which I
unhesitatingly repel."
(9) The above judgment has no application to the point
in issue. In that case, Sohan Singh was convicted under
Section 302. He was sentenced to death. If a person
commits house-breaking by night and also commits
murder, his act attracts Section 302 IPC. There is no
dispute about the said proposition. However, in the
present case, the appellant was charged under Sections
302, 460 and 149 IPC. He was not convicted under
Section 302 IPC. He was not convicted under Section
302/149 IPC. He was convicted only under Section 460.
No appeal was filed by the State for convicting him under
Section 302 IPC. No appeal was filed by the State for
convicting him under Section 302/149 IPC. The High
Court has convicted Abdul Aziz (appellant herein) under
Section 302/149 IPC in his own appeal by substituting
the conviction and sentence. No prior notice for
enhancement was issued by the High Court. In our view,
this cannot be done. In our view this would amount to
travesty of justice. It is only in the impugned judgment
that High Court observed that through inadvertence the
trial court had failed to invoke Section 302/149 IPC.
(10) For the aforestated reasons, we hold that Abdul Aziz
(appellant herein) stands convicted under Section 460
IPC and he will serve the sentence of rigorous
imprisonment for ten years and pay the fine as ordered
by Additional District and Sessions Judge, No.1 (Fast
Track) Jaipur City, Jaipur, in Session Case No.49/2001
decided on 9.3.2004.
(11) Consequently, the sentence of life imprisonment,
imposed by the impugned judgment of the High Court,
shall stand substituted by the sentence of rigorous
imprisonment for ten years and fine of Rs.500/- (in
default, three months sentence) as imposed by the trial
court vide its judgment dated 9.3.2004 in Session Case
NO.49/2001.
(12) Accordingly, the appeal is partly allowed.