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TMI Blog2023 (10) TMI 719X X X X Extracts X X X X X X X X Extracts X X X X ..... did not frame a charge against any accused for the offence punishable under Section 302 read with Section 34 of IPC. The High Court acquitted accused nos. 9, 11 and 12. 3. The allegation was of the triple murder of Uma Prasad, Vinod Kumar and Munau @ Anant Kishore Khare. According to the prosecution case, on 2nd June 1987, Vinod Kumar had taken his brother Munau to village Naugaon by scooter for medical treatment. As they did not return till 5 pm, Uma Prasad Khare (deceased), who was the father of Vinod Kumar Khare and Munau, deputed Naval Kishore (PW1) and Manua Chammer (PW2) to search his sons. PW1 Naval Kishore was the nephew of Uma Prasad. Even Uma Prasad proceeded to search Vinod Kumar and Munau Khare. When they reached Hanuman temple, they saw the accused gathered near the temple with firearms and other arms like farsa, axe and ballam. The appellant - accused no.2 and accused no.16 were armed with a spear. The role ascribed to accused nos.2 and 16 is that they stopped Uma Prasad. As a result, he fell off his bicycle. According to the prosecution case, accused nos. 3, 5 and 7 (acquitted) exhorted the other accused to chop Uma Prasad into pieces. Accused nos. 7, 9 and 11 (acqu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eding with the hearing of the appeal in the absence of his advocate. 9. He submitted that in view of the decision of this Court in the case of Mala Singh v. State of Haryana (2019) 5 SCC 127, the appellant could not have been convicted with the aid of Section 34 of IPC as there was no evidence of common intention, which was necessary for attracting Section 34 of IPC. Moreover, the appellant and other accused ought to have been put to notice by the High Court that it intended to modify the charge for invoking Section 34. He submitted that prejudice has been caused to the appellant by alteration of the charge apart from the fact that ingredients of Section 34 of IPC were not proved. Hence, the appellant is entitled to acquittal. 10. The learned counsel appearing for the respondent urged that from the impugned judgment, it appears that the High Court has carefully perused the evidence of the prosecution witnesses. He submitted that in an appeal against conviction, under Section 386 of the Code of Criminal Procedure, 1973 (for short 'Cr.PC') read with Section 216 of Cr.PC, the Appellate Court, has the power to alter or add the charge when no prejudice is shown to the accused. He subm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proposed alteration or addition of the charge even by orally informing the accused or his advocate when the appeal is being heard. In a given 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. 13. In the facts of the case, the appellant's advocate was absent on the date of the hearing. Therefore, there was no occasion for the High Court to put the advocate for the appellant to the notice that the charge under Section 302 read with Sections 148 and/or 149 of IPC was proposed to be altered to a charge under Section 302 read with Section 34 of IPC. Therefore, grave prejudice has been caused to the appellant by altering the charge without giving any notice to the appellant or his advocate about the charge. The reason is that there was no opportunity available to the accused to argue that there was no evidence on record to prove the existence of common intention, which is the necessary ingredient of Section 34 of IPC. There is one more crucial aspect of the case. A perusal of the impugned judgment shows that the High Court has extensively referred to the evidence of PW1 Nand Kishore and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... extent overlap. But a clear distinction is made out between common intention and common object in that common intention denotes action in concert and necessarily postulates the existence of a prearranged plan implying a prior meeting of the minds, while common object does not necessarily require proof of prior meeting of minds or preconcert. Though there is a substantial difference between the two sections, they also to some extent overlap and it is a question to be determined on the facts of each case whether the charge under Section 149 overlaps the ground covered by Section 34. Thus, if several persons numbering five or more, do an act and intend to do it, both Section 34 and Section 149 may apply. If the common object does not necessarily involve a common intention, then the substitution of Section 34 for Section 149 might result in prejudice to the accused and ought not, therefore, to be permitted. But if it does involve a common intention then the substitution of Section 34 for Section 149 must be held to be a formal matter. Whether such recourse can be had or not must depend on the facts of each case. The nonapplicability of Section 149 is, therefore, no bar in convicting t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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