SHEO RAM Vs. EMPEROR

JUDGEMENT

(1.) The question of law referred to us for decision is whether the non framing of a charge under Section 34, Indian Penal Code, is a bar to the conviction of a person for an offence by invoking the aid of Section 34, Indian Penal Code, or not?

(2.) In actual practice the question arises in various ways, and they depend on the original charge framed against an accused in a particular case. Accused may be charged with a particular offence without any mention in the charge that they had acted in furtherance of a common intention or without any reference to Section 34, Indian Penal Code, and be sought to be convicted of that offence read with Section 34, Indian Penal Code. Accused may be charged with an offence read with Section 149, Indian Penal Code, and ultimately conviction may be sought with respect to that offence read with Section 34, Indian Penal Code. Two other types of cases; which can arise, but which do not really come-within the purview of the question referred to us, can be whether accused charged with an. offence read with Section 149, Indian Penal Code, or with an offence read with Section 34, Indian Penal Code, can be convicted of the substantive offence only, and we do not propose to answer these two questions.

(3.) In the revision which has given rise to this reference a number of accused were tried for riot and for an offence under Section 825 read with Section 149, Indian Penal Code. Ultimately accused less than five in number were convicted. Their conviction was recorded, therefore, under Sec. 325 read with Section 34, Penal Code. The question in revision was whether they could be so convicted under law.