1. We do not think that the material on record justifies the conviction of the appellants. The trial Court, i.e., the Court of Session Belgaum in Sessions Case No. 141 of 1959 convicted both the appellants under Section 302 read with Section 149 I.P.C. and sentenced each one of them to suffer imprisonment for Me. It also convicted them under Section 148 I.P.C. and for that offence sentenced each one of them to suffer 18 months R.I.
In that court there were as many as 5 accused; all of them were charged under Section 302 read with Section 149 as well as under Section 148 I.P.C. But A-3 to A-5 were acquitted on the ground that their presence at the time of the, occurrence was not satisfactorily established. Curiously enough, the learned Sessions Judge thought that in spite of the acquittal of those accused, he could still convict the appellants under Section 302 read with Section 149 as well as under Section 148 I.P.C. as in his view, for which there is no basis, five persons took part in the attack on the deceased.
2. The prosecution case is that the deceased Tirthappa was in terms of illicit intimacy with Dyamawwa, wife of the first accused; therefore, the appellants who are cousins, along with their friends, the acquitted accused, formed themselves into an unlawful assembly and in prosecution of the common object of that assembly, the members of that assembly hacked the deceased to death On the morning of 30.9.1959 in front of the house of P.W. 7 Chandrawwa, the sister of the deceased.
3. There is no doubt that the deceased sas hacked to death at the time and place mentioned in the charge. He had sustained as many as 13 injuries of which 12 were incised; his neck was almost severed.
4. We have not thought it necessary to go into the question of motive as, in our Opinion, the evidence relating to the occurrence is unreliable.
5. But, before examining that evidence, we snail first consider the legality of the conviction of the appellants under Section 148 and under Section 302 read with Section 149 I.P.C. As mentioned earlier, the court below came to the conclusion that it was not proved that A-3 to A-5 were members of the alleged assembly. The charge framed against the accused clearly mentioned that the 5 persons named therein were members of the unlawful assembly. It was not the prosecution case than any other persons known or unknown were also members of that unlawful assembly. If three out of the five members of that unlawful assembly were acquitted on the ground that it was not proved that they were members of that unlawful assembly, then the court could not have convicted the remaining two under Section 148 I.P.C. or for any other offence, by taking the aid of Section 149 I.P.C.
Cases where it is proved that an unlawful assembly consisted of more than five members but some of them were not identifies must be distinguished from those where the court is doubtful about the presence of some of the persons mentioned as members of an unlawful assembly and if they are excluded from consideration the remaining members are hot five or more. In the former case, the existence of an unlawful assembly is established though some (if its members are not identified. But in the latter case the existence of an unlawful assembly itself becomes doubtful.
The case of the prosecution was that five accused in the court below were the members of an unlawful assembly. It was not said that is also consisted of some unknown persons. Nor was it alleged that any one or more of the members of that assembly could not be identified. The court below did not believe that three out of the five accused tried before it were members of that group, which amounts to a finding that the existence of the alleged unlawful assembly is itself doubtful. Hence, there was no occasion for the application of either Sections 148 or 149 I.P.C. See Bhnrwad Mepa Dama v. The State of Bombay AIR 1980 SC 289. In this view, the, conviction of the appellants under Section 148 as well as under Section 302 read with Section 149 I.P.C. cannot Be sustained.
6. But the learned Government Pleader contended that on the facts proved we could convert the conviction of the appellants to one under Section 302 read with Section 34 I.P.C. The learned Counsel for the appellants Sri V. Krishna Murthy resisted that contention on the ground that there was no charge under those provisions. His contention was that an offence under Section 302 read with Section 149 I.P.C is an independent offence and that a person charged for that offence cannot he convicted either under Section 302 I.P.C. or under Section 302 read with Section 34 I.P.C. which are wholly different offence. He further contended that the conviction of the appellants for an offence with which they were not charged is an illegality and not an irregularity curable by Sections 535 and 537 Cr.P.C. In support of these contentions, reliance was placed on the decision of the Supreme Court in Nannie Chanel v State of Punjab : 1955CriLJ721 . Therein their Lordships observed:
A charge for a substantive offence under Section 302, or Section 325 I.P.C. is for a distinct and separate offence from that under Section 302 read with Section 149 or Section 325, read with Section 149. A person charged with an offence read with Section 149 cannot be convicted of the substantive offence without a specific charge being framed as required by Section 233 Criminal P.C. A wrong conviction under Section 302/34 cannot be converted into ewe under Section 302.' (As summarised in the head-note.)
The observations above referred read by themselves do appear to support the contention of Sri V. Krishna Murthy. But that decision will have to be read along with the other decisions of the Supreme Court. The later decisions of that Court have explained the scope of that decision. It appears that decision must be confined to the facts of that case. Now we shall refer briefly to the facts of that case. In that case, the appellant along with others, was charged under Section 302 read with Section 149 I.P.C. but the trial court found the appellant and 3 others guilty of an offence under Section 302 rend with Section 34 I.P.C. In appeal, the High Court of Punjab convicted the appellant alone under Section 302 I.P.C. but acquitted the remaining accused. It modified the conviction from one under Section 302 read with Section 34 I.P.C. to one under Section 302 I.P.C
In the course of the arguments the decision in Karnail Singh v. State of Punjab AIR 1954 SC 204 where a conviction under Section 302 read with Section 149 I.P.C. had been converted into a conviction under, Section 302/34, was pointed out to their Lordships. The learned Judges did not dissent from that decision. The Supreme Court has consistently taken the view that if one prejudice is caused to the accused, he may be convicted under Section 302/34 I.P.C., even though he was charged under Section 302/146 I.P.C.
The first decision to which we would like to make reference is the decision in Lachhman Singh v. The State : 1952CriLJ863 . In that case the very question that is before us came up for decision. Fazl Ali, J. speaking for the court repelled the contention similar to the one advanced by Sri Krishna Murthy in this Court With the following observations:.It was also contended that there being no charge under Section 302 read with Section 34; Penal Code, the conviction of the appellants under Section 302 read with Section 149 could not have been altered by the High Court to one under Section 302 rend with Section 34 upon the acquittal of the remaining accused persons. The facts of the case are however such that the accused could have been charged alternatively, either under Section 302 read with Section 149 or under Section 302 read with Section 34. The point has, therefore no force. If we may so, with respect, the above conclusion flows from the language of Sections 236 and 237, Cri.P.C. Section 236 says:
If a single act or series of acts is of such a nature that it is doubtful which of several offences the facts which can be proved will constitute, the accused may be charged with having committed all or any of such offences, and any number of such charges may be tried at once; or he may be charged in the alternative with having committed some one of the said offences.Section 236 Cr.P.C. deals with cases where there are no doubts about the facts proved but there is doubt as regards the offence made out by the proved facts. Such a difficulty some time does arise when the court is called upon to decide whether the facts established give rise to an inference of 'common object' as contemplated in Section 149 I.P.C. or 'common intention' within the meaning of that expression found in Section 34 I.P.C. That being so, the provisions of Section 237 Cr.P.C. are attracted-That section reads:If in the case mentioned in Section 236, the accused is charged with one offence, and it appears in evidence that he committed a different offence for which he might have been charged under the provisions of that section, he may be convicted of the offence which he is shown to have committed although he was not charged with it.
If the trial court could have convicted the appellants under Section 302 read with Section 34 I.P.C. by having recourse to Section 237 Cr.P.C., then this Court could also do the same tiling. The scope of Section 237 Cr.P.C. was considered by the Supreme Court in Bejoy Chand Patra v. State of West Bengal : 1952CriLJ644 . Therein, the court upheld the conviction of the appellant who was convicted under Section 326 I.P.C. though charged under Section 307 I.P.C.
7. We may now take up the. decision in Willie (William) Slaney v. State of Madhya Pradesh : 1956CriLJ291 wherein the scope of the decision in Nanak Chand's case (S) AIR 1955 SC 374 came up for consideration. Bose J. speaking for himself and for S.R. Das, Ag. C.J. observed:
The code is a code of procedure and like all procedural laws, is designed to further the ends of justice and not to frustrate them by the introduction of endless technicalities. The object of die code is to ensure that an accused person gets a full and fair trial along certain well established and well understood lines that accord with our notions of natural justice.
If he does, if he is tried by a competent court, if he is told and clearly understands the nature of the offence for which he is being tried, if the case against him is fully and fairly explained to him and he is afforded a full and fair opportunity of defending himself, then, provided there is substantial compliance with the outward forms of, the law, mere mistakes in procedure, mere inconsequential errors and omissions in the trial are regarded as venial by the Code and the, trial is, not vitiated unless the accused can show substantial prejudice.
Their Lordships further observed:
Except where there is something so vital as to cut at the root of jurisdiction or so abhorrent to what one might term as natural justice, the matter resolves itself into a question of prejudice.
Dealing with the decision in Nanak Chand's case : 1955CriLJ721 they said:
Now it is true that there are observations there which, without close examination would appear to support the learned Counsel for the appellant. But those observations must be construed in the light of the facts found, the most crucial fact being that patent prejudice was disclosed.
It was found that the appellant there was in fact misled in his defence and one of the factors taken into consideration, as indeed must always be the case, was that when he was told that he was to be tried under Section 302 read with Section 149 I.P.C. that indicated to him that he was not being tried for a murder committed by him personally but that he was only being made vicariously liable for an act that another had done in prosecution of the common object of an unlawful assembly of which he was a member. But that was only one of the matters considered and it does not follow that every accused will be so misled. It all depends on the circumstances.
Chandrasekhara Aiyar and Jagannadhadas, JJ. Observed:
There is much difference in the scope and applicability of Sections 34 and 149, though they have some resemblance and are to some extent overlapping. Section 34 does not by itself create any offence, whereas Section 149 does. In a charge under Section 34, there is active participation in the commission of the criminal act; under Section 149, the liability arises by reason of the membership of the unlawful assembly with a common object, and there may be no active participation at all in the perpetration or commission of the crime.
But, proceeding further, their Lordships observed:
Sections 34, 114 and 149 of the Indian Penal Code provide for criminal liability viewed from different angles as regards actual participants, accessories and men actuated by a common object or a common intention; and the charge is a rolled-up one involving the direct liability and the constructive liability without specifying who are directly liable and who are sought to be made constructively liable.
In such a situation, the absence of a charge under one or Other of the various heads of criminal liability for the offence cannot be said to be fatal by itself, and before a conviction for the substantive offence, without a charge can be set aside, prejudice will have to be made out.
Imam, J. who delivered the judgment in Nanak Chand's case : 1955CriLJ721 was a member of the Bench which decided the above case and generally speaking he agreed with the judgment delivered by Chandrasekhara Aiyar, J, Now we may proceed to consider the decision in Khacheru Singh v. State of Uttar Pradesh : 1956CriLJ950 . At the outset it may be mentioned that the judgment of the Court was delivered by Imam, J., In that case H accused were charged under Sections 148, 323 and 326 read with Section 149 I.P.C. It was proved that out of them 3 accused had attacked the complainant in tile first incident. In that incident certain injuries were suffered by the complainant although no injury was caused by a spear. The complainant ram away followed by these three accused and the complainant and his companions were again attacked by these three accused.
The Sessions Judge acquitted 8 accused and convicted the three accused. The High Court in revision held that as a result of the Sessions Judge's judgment the three accused could not be convicted under Section 148 or Sections 323 and 326 read with Section 149 as the ingredients to establish the existence of an unlawful assembly were absent. The High Court, however, convicted these three accused under Sections 323 and 326 read with Section 34 Penal Code.
The Supreme Court held:
The provisions of Section 34 were applicable. These three accused assaulted the complainant, in the first incident. They pursued the complainant and they persisted in assaulting him and those who had come to his help. The clear implication of this was that the assault in the second incident was the result of the previous concert. The evidence to prove the common intention was the same which would have proved the common object if it had been established that there had been an unlawful assembly. The accused therefore, could be convicted under Sections 323 and 326 read with Section 34.
The last decision cited at the Bar is the one reported in : 1960CriLJ424 . Io that decision, their Lordships laid down that a mere error in the charge, in the absence of prejudice, is insufficient to set aside the conviction.
8. We have gone into the above controversy in some detail as that controversy was being debated before this Court repeatedly ever since Nana'k Chand's case : 1955CriLJ721 .
9. The difficulty of the prosecution in, this case is not owe of law. The prosecution has to fail on facts. (Their Lordships here discussed the evidence (rest of this para and Para 10) and concluded that the prosecution case was not established.)
10. In the result, this appeal is allowed and both the appellants acquitted. They shall be released forthwith.