Supreme Court alters conviction from Section 302/34 to 324 IPC: Mala Singh vs. State of Haryana (2019)

Date of the Judgment: 12 February 2019
Citation: (2019) INSC 123
Judges: Abhay Manohar Sapre, J., R. Subhash Reddy, J.
Can a High Court alter a charge from Section 302 read with Section 149 of the Indian Penal Code, 1860 (IPC) to Section 302 read with Section 34 of the IPC, and convict the accused, after acquitting other co-accused? The Supreme Court of India addressed this question in a case involving a family dispute that led to a death. The core issue was whether the High Court was justified in altering the charge and convicting some of the accused while acquitting others. The judgment was delivered by a two-judge bench comprising Justice Abhay Manohar Sapre and Justice R. Subhash Reddy, with the majority opinion authored by Justice Sapre.

Case Background

The case arose from a dispute within a family over the ownership of ancestral agricultural land. Mehar Singh and his brothers had orally partitioned 22 killas of land 30 years prior to the incident. Later, Mehar Singh purchased 2 ½ acres of land, which his brothers, Mala Singh (A-7), Bagga Singh (A-6), and Inder Singh (A-5), demanded a share in. Mehar Singh refused, leading to a conflict.

On 21 September 1996, at around 12 noon, Mehar Singh, his son Mal Singh, Mahendro Bai (Mal Singh’s wife), Dara Singh (Mehar Singh’s son), and Palo Devi (Dara Singh’s wife) were present on their land. The accused, including Mala Singh (A-7), Inder Singh (A-5), Bagga Singh (A-6), Boor Singh (A-2), Balwant Singh (A-4), Puran Singh (A-3), Ranjit Singh (A-1), Phuman Singh (A-8), Taro Bai (A-11), and Kashmiro (A-9), arrived with weapons. Mala Singh (A-7) allegedly gave a “Lalkara” (incitement) to teach them a lesson for not partitioning the land, which resulted in a fight. Mahendro Bai died, and Mehar Singh and Palo Bai sustained injuries.

An FIR was registered by Dara Singh, leading to an investigation and the arrest of eleven individuals (A-1 to A-11). The Additional Sessions Judge, Faridabad, convicted all eleven accused under Sections 148, 302/149, 323/149, and 506/149 of the IPC. The High Court of Punjab & Haryana acquitted eight of the accused (A-1 to A-6, A-10, and A-11) but upheld the conviction of three accused (A-7 to A-9) under Section 302/34 IPC, leading to the current appeal before the Supreme Court.

Timeline:

Course of Proceedings

The Additional Sessions Judge, Faridabad, convicted all eleven accused (A-1 to A-11) under Sections 148, 302/149, 323/149, and 506/149 of the IPC. The accused then filed a joint criminal appeal in the High Court of Punjab & Haryana at Chandigarh.

The High Court allowed the appeal for eight accused (A-1 to A-6, A-10, and A-11), acquitting them of all charges. However, the High Court dismissed the appeal for three accused (A-7 to A-9), upholding their conviction but altering it to Section 302 read with Section 34 of the IPC, instead of Section 302/149 IPC. The three accused, Mala Singh (A-7), Phuman Singh (A-8), and Kashmiro (A-9), then appealed to the Supreme Court.

During the pendency of the appeal, Mala Singh (A-7) passed away, leading to the abatement of his appeal. The Supreme Court then considered the appeals of the remaining two accused, Phuman Singh (A-8) and Kashmiro (A-9).

Legal Framework

The judgment primarily revolves around the interpretation and application of several sections of the Criminal Procedure Code, 1973 (Cr.P.C.) and the Indian Penal Code, 1860 (IPC).

Section 216 of the Cr.P.C. deals with the power of the court to alter or add to any charge at any time before the judgment is pronounced. It states:

“216. Court may alter charge. (1) Any Court may alter or add to any charge at any time before judgment is pronounced. (2) Every such alteration or addition shall be read and explained to the accused. (3) If the alteration or addition to a charge is such that proceeding immediately with the trial is not likely, in the opinion of the Court, to prejudice the accused in his defence or the prosecutor in the conduct of the case, the Court may, in its discretion, after such alteration or addition has been made, proceed with the trial as if the altered or added charge had been the original charge. (4) If the alteration or addition is such that proceeding immediately with the trial is likely, in the opinion of the Court, to prejudice the accused or the prosecutor as aforesaid, the Court may either direct a new trial or adjourn the trial for such period as may be necessary. (5) If the offence stated in the altered or added charge is one for the prosecution of which previous sanction is necessary, the case shall not be proceeded with until such sanction is obtained, unless sanction had been already obtained for a prosecution on the same facts as those on which the altered or added charge is founded.”

Section 386 of the Cr.P.C. outlines the powers of the Appellate Court, including the authority to reverse findings, alter sentences, and make any necessary amendments or orders. It states:

“386. Powers of the Appellate Court. After perusing such record and hearing the appellant or his pleader, if he appears, and the Public Prosecutor if he appears, and in case of an appeal under section 377 or section 378, the accused, if he appears, the Appellate Court may, if it considers that there is no sufficient ground for interfering, dismiss the appeal, or may— (a) in an appeal from an order of acquittal, reverse such order and direct that further inquiry be made, or that the accused be re-tried or committed for trial, as the case may be, or find him guilty and pass sentence on him according to law; (b) in an appeal from a conviction— (i) reverse the finding and sentence and acquit or discharge the accused, or order him to be re-tried by a Court of competent jurisdiction subordinate to such Appellate Court or committed for trial, or (ii) alter the finding, maintaining the sentence, or (iii) with or without altering the finding, alter the nature or the extent, or the nature and extent, of the sentence, but not so as to enhance the Same; (c) in an appeal for enhancement of sentence— (i) reverse the finding and sentence and acquit or discharge the accused or order him to be re-tried by a Court competent to try the offence, or (ii) alter the finding maintaining the sentence, or (iii) with or without altering the finding, alter the nature or the extent, or the nature and extent, of the sentence, so as to enhance or reduce the same; (d) in an appeal from any other order, alter or reverse such order; (e) make any amendment or any consequential or incidental order that may be just or proper; Provided that the sentence shall not be enhanced unless the accused has had an opportunity of showing cause against such enhancement: Provided further that the Appellate Court shall not inflict greater punishment for the offence which in its opinion the accused has committed, than might have been inflicted for that offence by the Court passing the order or sentence under appeal.”

Section 464 of the Cr.P.C. deals with the effect of an omission to frame a charge or any error in the charge. It states:

“464. Effect of omission to frame, or absence of, or error in, charge. (1) No finding, sentence or order by a Court of competent jurisdiction shall be deemed invalid merely on the ground that no charge was framed or on the ground of any error, omission or irregularity in the charge including any misjoinder of charges, unless, in the opinion of the Court of appeal, confirmation or revision, a failure of justice has in fact been occasioned thereby. (2) If the Court of appeal, confirmation or revision is of opinion that a failure of justice has in fact been occasioned, it may— (a) in the case of an omission to frame a charge, order that a charge be framed and that the trial be recommenced from the point immediately after the framing of the charge; (b) in the case of an error, omission or irregularity in the charge, direct a new trial to be had upon a charge framed in whatever manner it thinks fit: Provided that if the Court is of opinion that the facts of the case are such that no valid charge could be preferred against the accused in respect of the facts proved, it shall quash the conviction.”

The judgment also discusses Section 34 of the IPC, which deals with acts done by several persons in furtherance of a common intention, and Section 149 of the IPC, which pertains to offenses committed by members of an unlawful assembly.

Arguments

Appellants’ Arguments:

• The High Court erred in upholding the conviction of the appellants under Section 302/34 IPC after acquitting eight co-accused. The appellants argued that they should have been acquitted along with the other co-accused.
• The High Court should not have altered the charge from Section 302/149 IPC to Section 302/34 IPC suo moto without giving the appellants an opportunity to defend themselves against the altered charge.
• There was no evidence to support the splitting of charges at the appellate stage and convicting the appellants under Section 302/34 IPC while acquitting the other co-accused under Section 302/149 IPC.
• The High Court should have examined the role of each appellant individually in the commission of the crime, especially after acquitting the eight co-accused.
• The appellants argued that the death of Mahendro Bai was caused by a gunshot injury by Puran Singh (A-3) and a farsa injury by Mala Singh (A-7), both of whom were either acquitted or deceased, and not by the injuries caused by the present appellants.
• The appellants, Phuman Singh (A-8) and Kashmiro (A-9), only inflicted simple injuries with lathis and should at best be convicted under Section 324 of the IPC.
• Given that the appellants had already served approximately seven years in jail and have been on bail for the last 10 years, the ends of justice would be met if they were awarded the sentence of “already undergone” under Section 324 IPC with a fine.

Respondent’s Arguments:

• The State of Haryana supported the High Court’s order and argued that it should be upheld without any interference.

Amicus Curiae’s Arguments:

• The amicus curiae brought to the Court’s attention the relevant legal position and argued by pointing out the evidence and how the legal principles laid down by the Supreme Court apply to the case.

Issues Framed by the Supreme Court

The Supreme Court framed the following four issues for consideration:

1. Whether the High Court was justified in convicting the appellants under Section 302 read with Section 34 of the IPC when the initial trial was based on a charge under Section 302 read with Section 149 of the IPC?
2. Whether the High Court was justified in altering the charge under Section 149 to one under Section 34 in relation to three accused (appellants herein) after acquitting eight co-accused from the charges of Section 302/149 IPC and then convicting the three accused (appellants herein) on the altered charges under Section 302/34 IPC?
3. Whether there is any evidence to sustain the charge under Section 34 IPC against the three accused (appellants herein) so as to convict them for an offence under Section 302 IPC?
4. In case the charge under Section 34 IPC is held not made out for want of evidence and further when the charge under Section 149 is already held not made out by the High Court, whether any case against three accused persons (appellants herein) is made out for their conviction and, if so, for which offence?

Treatment of the Issue by the Court

The following table demonstrates as to how the Court decided the issues

Authorities

The Supreme Court referred to several key cases and legal provisions to address the issues at hand.

Cases Cited:

• Willie (William) Slaney vs. State of M.P. (AIR 1956 SC 116) – This Constitution Bench judgment discussed the materiality of errors or omissions in charges. The Court held that such errors are not material unless the accused has been misled and a failure of justice has occurred.
• Kantilal Chandulal Mehta vs. State of Maharashtra & Anr. (1969) 3 SCC 166 – This case examined the powers of courts to alter or amend charges, emphasizing that the accused should not face a new charge without a fair opportunity to defend themselves.
• Lachhman Singh & Ors. vs. The State (AIR 1952 SC 167) – This case held that a conviction under Section 302 read with Section 34 IPC is valid even without a separate charge if the facts of the case allow for such a charge.
• Karnail Singh & Anr. vs. State of Punjab (AIR 1954 SC 204) – This judgment clarified the difference between Section 34 and Section 149 of the IPC, stating that the substitution of Section 34 for Section 149 is permissible if the facts and evidence are the same.
• Chittarmal vs. State of Rajasthan (2003) 2 SCC 266 – This case reiterated that Sections 34 and 149 deal with constructive criminality and can overlap. It also stated that if a common object involves a common intention, Section 34 can be substituted for Section 149.
• Mohd. Khalil Chisti vs. State of Rajasthan & Ors. (2013) 2 SCC 541 – This case was cited by the appellants regarding the nature of injuries and the appropriate conviction.

Legal Provisions Considered:

• Section 216 of the Cr.P.C. – Powers of the Court to alter the charge.
• Section 386 of the Cr.P.C. – Powers of the Appellate Court.
• Section 464 of the Cr.P.C. – Effect of omission to frame, or absence of, or error in, charge.
• Section 34 of the IPC – Acts done by several persons in furtherance of common intention.
• Section 149 of the IPC – Offence committed by members of unlawful assembly.
• Section 302 of the IPC – Punishment for murder.
• Section 324 of the IPC – Voluntarily causing hurt by dangerous weapons or means.

Judgment

The Supreme Court analyzed the submissions of both parties and the authorities cited to arrive at its decision. The Court noted that while the High Court had the power to alter the charge, the alteration from Section 149 to Section 34 IPC was not justified in this case due to a lack of evidence of common intention among the appellants.

What weighed in the mind of the Court?

The Supreme Court’s decision was primarily influenced by the lack of evidence to support the charge under Section 34 of the IPC against the appellants, especially after the acquittal of the other co-accused. The Court emphasized that the prosecution failed to prove a common intention to murder among the appellants. The Court also considered the fact that the appellants only inflicted simple injuries, and the fatal injuries were caused by others who were either acquitted or deceased. The Court also took into account the time already served bythe appellants in jail and their conduct during the pendency of the appeal.

Final Decision

The Supreme Court allowed the appeals of Phuman Singh (A-8) and Kashmiro (A-9) in part. The Court set aside the conviction and sentence imposed by the High Court under Section 302 read with Section 34 of the IPC. Instead, the Court convicted them under Section 324 of the IPC for causing simple injuries. The Court sentenced each of them to the period already undergone, which was approximately seven years, and imposed a fine of ₹5,000 each. In case of non-payment of the fine, they were to undergo a further simple imprisonment of six months.

Flowchart of the Case