RAJARAM Vs. STATE OF M P

JUDGEMENT

(1.) THIS appeal is filed by the sole accused assailing the judgment dated 31.7.1997 passed by the First Additional Sessions Judge, Guna in S.T. No. 125/94 whereby the Sessions Court has convicted the present appellant for commission of an offence under section 302 of IPC, and sentenced to suffer imprisonment for life with a fine of Rs. 1,000/- and in default of payment of fine to undergo another period of one month's simple imprisonment.

(2.) THE prosecution story, in brief, is that Ramkriesh was doing the job of grazing cattle of the accused. On the date of incident i.e., 22.1.1994 at about 6 O'clock in the evening, only five accused reached the house of Phulla and complained to his brother namely Sanman alias Sannu that due to negligence of his son one of their cows is missing. They asked him to accompany, hence Sannu went alongwith accused for searching of their cow. He did not return to the house till 10-11 O'clock in night. Hence, Ramkriesh went for search of his father alongwith Hargovind. At about 1-30-2 O'clock in night, Ramkrish returned back to the house, Ramkriesh told his family members that near the place of Marothhe the accused persons met him and they told that his father is lying dead. On getting this information, Kapuri, widow of the deceased alongwith Ramkriesh lodged the report to the police station. On the report lodged by Kapuribai, the police registered criminal case No. 8/94 for commission of offence under sections 302/34, 147, 148, 149, 120-B of IPC, and under sections 3, 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. The matter was committed to the Court of Sessions. The Sessions Court framed charge against the present appellant for commission of offence under sections 147 and 302/149 of IPC. The Sessions Court after recording the evidence acquitted other accused but convicted the present appellant for commission of offence under section 302 IPC simpliciter. Hence, this appeal.

(3.) SO far as first contention raised by the learned counsel appearing for the appellant is concerned, he invited attention of this Court to the decision of the apex Court in the case of Nanak Chand v. State of Punjab, reported in AIR 1955 SC 274. In that case, the charge was framed against the accused for commission of offence under section 302 read with section 149 of IPC, but he was held guilty by the Sessions Court only for commission of offence under section 302 IPC, simpliciter. The apex Court has held that there is clear distinction between the provisions of section 34 and 149 and the two sections are not to be confused. The principle element in section 34 is the common intention to commit a crime. In furtherence of the common intention several acts may be done by several persons resulting in the commission of that crime. In such a situation section 34 provides that each one of them would be liable for that crime in the same manner as if all the acts resulting in that crime had been done by him alone. There is no question of common intention in section 149 and the offence may be committed by a member of an unlawful assembly and the other members will be liable for that offence. The apex Court has further held that a charge for substantive offence under section 302 is for a distinct and separate offence from that under section 302 read with section 149 and a person charged with an offence read with section 149 cannot be convicted for the substantive offence without a specific charge being framed as required by section 233 CrPC. A wrong conviction under section 302/34 cannot be converted into one under section 302. If there is a conviction for a charge not framed it is an illegality and not an irregularity curable by the provisions of section 535 and 537 of the Code of Criminal Procedure*. The apex Court further held that the accused in defending himself was not called upon to meet such a charge and in his defence he may well have considered it unnecessary to concentrate on that part of the prosecution case. In the aforesaid case the apex Court has set aside the conviction on the ground that the charge was levelled against the appellant for commission of offence under section 302/149 IPC. But he was convicted simpliciter for commission of offence under section 302 of IPC. The apex Court after setting aside the conviction remanded the matter back to the Sessions Court for re-trial after framing the charge under section 302 IPC.