JANGIR SINGH DEVA SINGH Vs. STATE

JUDGEMENT

(1.) JANGIR Singh, Bhola Singh, Dalip Singh and Joginder Singh were tried under section 302 read with section 34, Indian Penal Code for committing the murder of one Pritam Singh it furtherance of their common intention. The learned Additional sessions Judge, Faridkot came to the conclusion that the charge under section 302 read with section 34, Indian Penal Code, had not been brought home to the accused and proceeded to convict them under section 304 Part I, Indian Penal code, and sentenced them to three years' rigorous imprisonment and to pay a fine of Rs. 500/- each, or in default of payment of fine to undergo rigorous imprisonment for a further period of six months each. A sum of Rs. 1500/- out of the fine, if realised was to be paid to Shrimati Gurdial Kaur, widow of the deceased.

(2.) THE accused preferred an appeal against the above order to this court. The complainant also filed a revision petition contending that the accused should have been convicted for culpable homicide amounting to murder and as a result prayed for enhancement of punishment already awarded to them. The appeal and the revision both came up for hearing before the learned Single Judge, who in view of the importance of the point agitated, which was to the following effect, referred the case to a larger Bench; in consequence, it has been placed before us for decision: where accused persons are tried by a Sessions Court on charge of murder committed in furtherance of common intention, and the Sessions court acquits the accused of this charge and convicts them only of an offence under section 304 Part I read with section 34 Indian Penal Code, and the accused appeal to the High Court against the conviction and sentence but the State Government does not appeal against the acquittal of the accused on charge of murder is it open to the High Court under section 423 or section 439, Criminal Procedure Code, on a revision filed by the Complainant for enhancement of punishment, to set aside the conviction and sentence under section 304 Part I read with section 34, Indian Penal Code and to convict and sentence them for murder under section 302 read with section 34, Indian Penal Code?' section 423, Criminal Procedure Code, relates to powers of Appellate Court in disposing of appeal and sub-sections (1) and (1-A) are as under:--

(3.) THE learned counsel for the accused-appellants maintained that the High Court in exercise of its appellate and revisional powers under Section 423 (1) (b) or 439, criminal Procedure Code could not reverse the finding of acquittal recorded by the trial Court in favour of the appellant in respect of an offence which directly was not the subject-matter of appeal and in doing so referred to the case, Kishan Singh v. Emperor, Air 1928 PC 254, where a similar point came up for decision. In the cited case, an accused was charged with the offence of murder under Section 302 indian Penal Code, in the Sessions Court. He was, however, convicted under section 304, Indian penal Code, and sentenced to a term of imprisonment. The said judgment of the Sessions Court was questioned in the High Court at the instance of the local Government on the revisional side. The High Court on reviewing the evidence concluded that the offence under Section 302, Indian Penal code had been made out instead, and while convicting the accused accordingly sentenced him to appeal by special leave observed that the accused must be deemed to have been acquitted in the Sessions Court of the charge of murder and that the order of the High Court resulted in altering a finding of acquittal into one of conviction and was, therefore, without jurisdiction. The same view was propounded in Mohammad Sharif v. Rex AIR 1950 All 280, Tej Khan v. Rex, AIR 1952 All 369 (FB) and Narayana v. State of Andhra Pradesh in Narayana's case, air 1960 Andh Pra 1 (FB), Criminal Appeal No. 222 of 1959, State of Andhra pradesh v. Narayana, D/- 24-7-1961 : (AIR 1962 SC 240) confirmed the decision taken by the Andhra Pradesh High Court. . Their Lordships laid down that the power conferred by the expression "after the finding" in section 423 (1) (b) (2) did not include the power to alter or modify the finding of acquittal.