2023 (10) TMI 719 - SC - Indian Laws

Assault - Triple-murder - acquittal of the accused - acquittal of accused. Whether any prejudice was caused to the appellant, as his appeal was heard in the absence of his advocate? - HELD THAT - 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. 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 - 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. There is no reason recorded in the impugned judgment 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. 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 - the 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. Appeal allowed partly.

Summary

Issues Involved:

1. Prejudice caused due to absence of appellant's advocate during the High Court hearing.
2. Legality of conviction under Section 302 read with Section 34 of IPC without evidence of common intention.
3. Justification for conviction under Section 201 of IPC.

Summary:

1. Prejudice Due to Absence of Advocate:

The appellant's advocate was absent during the High Court hearing, as noted in the cause title of the judgment. The High Court committed an illegality by deciding the appeal without hearing the appellant or his advocate. The High Court should have appointed a lawyer to represent the appellant, ensuring the principles of natural justice were upheld.

2. Legality of Conviction Under Section 302 Read with Section 34 of IPC:

The High Court substituted the conviction under Section 302 read with Sections 148 and/or 149 of IPC with Section 302 read with Section 34 of IPC without notifying the appellant. This alteration caused grave prejudice as the appellant was not given an opportunity to argue against the new charge. The High Court failed to record reasons for applying Section 34 of IPC and did not provide evidence of common intention among the accused. The Supreme Court found no evidence of common intention and concluded that the conviction under Section 302 read with Section 34 of IPC could not be sustained.

3. Justification for Conviction Under Section 201 of IPC:

The evidence from eyewitnesses (PW1 and PW2) consistently indicated the appellant's role in dragging and disposing of the deceased's body. The cross-examination did not challenge this aspect, justifying the conviction under Section 201 of IPC. The appellant had already served the five-year sentence for this offence.

Conclusion:

The Supreme Court set aside the appellant's conviction under Section 302 read with Section 34 of IPC due to lack of evidence and improper alteration of charges. However, it confirmed the conviction under Section 201 of IPC, as the appellant had already served the sentence. The appeal was allowed on these terms, and the appellant's bail bonds were cancelled.