P.D. Sharma, J.
(1) Jangir Singh, Bhola Singh, Dalip Singh and Joginder Singh were tried under section 302 read with section 34, Indian Penal Code for committing the murder of one Pritam Singh it furtherance of their common intention. The learned Additional Sessions Judge, Faridkot came to the conclusion that the charge under section 302 read with section 34, Indian Penal Code, had not been brought home to the accused and proceeded to convict them under section 304 Part I, Indian Penal Code, and sentenced them to three years' rigorous imprisonment and to pay a fine of Rs. 500/- each, or in default of payment of fine to undergo rigorous imprisonment for a further period of six months each. A sum of Rs. 1500/- out of the fine, if realised was to be paid to Shrimati Gurdial Kaur, widow of the deceased.
(2) The accused preferred an appeal against the above order to this court. The complainant also filed a revision petition contending that the accused should have been convicted for culpable homicide amounting to murder and as a result prayed for enhancement of punishment already awarded to them. The appeal and the revision both came up for hearing before the learned Single Judge, who in view of the importance of the point agitated, which was to the following effect, referred the case to a larger Bench; in consequence, it has been placed before us for decision:
Where accused persons are tried by a Sessions Court on charge of murder committed in furtherance of common intention, and the Sessions Court acquits the accused of this charge and convicts them only of an offence under section 304 Part I read with section 34 Indian Penal Code, and the accused appeal to the High Court against the conviction and sentence but the State Government does not appeal against the acquittal of the accused on charge of murder is it open to the High Court under section 423 or section 439, Criminal Procedure Code, on a revision filed by the Complainant for enhancement of punishment, to set aside the conviction and sentence under section 304 Part I read with section 34, Indian Penal Code and to convict and sentence them for murder under section 302 read with section 34, Indian Penal Code?'
Section 423, Criminal Procedure Code, relates to powers of Appellate Court in disposing of appeal and sub-sections (1) and (1-A) are as under:--
'(1) The Appellate Court shall then send for the record of the case, if such record is not already in 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 411-A, sub-section (2), or Section 417, the accused, if he appears, the 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 retried 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, (1) reverse the finding and sentence, and acquit or discharge the accused, or order him to be retried by a Court of competent jurisdiction subordinate to such Appellate Court or committed for trial, or (2) alter the finding, maintaining the sentence, or, with or without altering the finding, reduce the sentence, or (3) with or without such reduction and with or without altering the finding, alter the nature of the sentence but, subject to the provisions of Section 106, sub-section (3), not so as to enhance the same,
(c) in an appeal from any other order, alter or reverse such order;
(d) make any amendment or any consequential or incidental order that may be just or proper.
(1A) Where an appeal from a conviction lies to the High Court, it may enhance the sentence, notwithstanding anything inconsistent therewith contained in clause (b) of sub-section (1) : provided that the sentence shall not be so enhanced, unless the accused has had an opportunity of showing cause against such enhancement.'
Section 439 Criminal Procedure Code, governs the High Court's powers of revision and sub-sections (1), (4) and (5) are reproduced below :
(1) In the case of any proceeding the record of which has been called for by itself or which has been reported for orders, or which otherwise comes to its knowledge, the High Court may, in its discretion exercise any of the power conferred on a Court of appeal by Secs. 423, 426,427 and 428 or on a Court by Section 338, and may enhance the sentence; and when the Judges composing the Court of revision are equally divided in opinion, the case shall be disposed of in manner provided by Section 429.
xxx xxx (4) Nothing in this section applies to an entry made under Section 273, or shall be deemed to authorise a High Court to convert a finding of acquittal into one of conviction.
(5) Where under this Code an appeal lies and no appeal is brought, no proceedings by way of revision shall be entertained at the instance of the party who could have appealed.'
(3) The learned counsel for the accused-appellants maintained that the High Court in exercise of its appellate and revisional powers under Section 423(1)(b) or 439, Criminal Procedure Code could not reverse the finding of acquittal recorded by the trial Court in favour of the appellant in respect of an offence which directly was not the subject-matter of appeal and in doing so referred to the case, Kishan Singh v. Emperor, Air 1928 PC 254, where a similar point came up for decision. In the cited case, an accused was charged with the offence of murder under Section 302 Indian Penal Code, in the Sessions Court. He was, however, convicted under Section 304, Indian penal Code, and sentenced to a term of imprisonment. The said judgment of the Sessions Court was questioned in the High Court at the instance of the local Government on the revisional side. The High Court on reviewing the evidence concluded that the offence under Section 302, Indian Penal Code had been made out instead, and while convicting the accused accordingly sentenced him to appeal by special leave observed that the accused must be deemed to have been acquitted in the Sessions Court of the charge of murder and that the order of the High Court resulted in altering a finding of acquittal into one of conviction and was, therefore, without jurisdiction. The same view was propounded in Mohammad Sharif v. Rex AIR 1950 All 280, Tej Khan v. Rex, AIR 1952 All 369 (FB) and Narayana v. State of Andhra Pradesh in Narayana's case, AIR 1960 Andh Pra 1 (FB), Criminal Appeal No. 222 of 1959, State of Andhra Pradesh v. Narayana, D/- 24-7-1961 : (AIR 1962 SC 240) confirmed the decision taken by the Andhra Pradesh High Court.. Their Lordships laid down that the power conferred by the expression 'after the finding' in section 423(1)(b)(2) did not include the power to alter or modify the finding of acquittal.
(4) A Full Bench decision of the Lahore High Court in Bawa Singh v. Emperor, AIR 1941 Lah 465, however, pointed to the contrary while laying down:
'It is open to an appellate Court, in an appeal from a conviction by a convict who had been charged, say for example, under section 302 Penal Code, but convicted under section 304 Part I Penal Code to alter the conviction from one under section 304, Part I, to one under section 302, Penal Code, and then in the exercise of the powers conferred by section 439(1) to enhance the sentence to one of death.' This decision was noticed and obviously not approved of by their Lordships of the Supreme Court while deciding Cri App No. 222 of 1959, D/- 24-7-1961 : (AIR 1962 SC 240). In view of the rule of law indicated by the Supreme Court in Narayan's case, AIR 1960 Andh pra 1 (FB), it cannot now be urged with any show of justification that an Appellate Court in an appeal from a conviction by a convict, can alter or modify the finding of acquittal under section 423(1)(b)(2) of the Code of Criminal Procedure. The question of enhancement of punishment under section 439(1), Criminal Procedure Code, dependent upon contemplated alteration or modification of the finding of acquittal, could not thus arise. The High Court in exercise of revisional powers under S. 439(4), Criminal Procedure Code, is not competent either to convert a finding of acquittal into one of conviction. The prohibition is obvious on the plain reading of the provisions of section 439, sub-section (4) and refers to a case where the trial ended in a complete acquittal of the accused in respect of all charges or offences, as well as, to a case such as the present one, where the accused has been acquitted of the charge of murder, but convicted of the minor offence of culpable homicide not amounting to murder. The proposition is well founded and stands amply supported by the observations and dictum in AIR 1928 PC 254, and (Criminal Appeal No. 222 of 1959 in the Supreme Court of India, D/- 24-7-1961 : (AIR 1962 SC 240)).
(5) For all these reasons, we are irresistibly driven to the conclusion that if the accused had secured acquittal on the charge of murder under section 302/34, Indian Penal Code and had been convicted by the trial Court under section 304, Part I instead, their said conviction on an appeal by the convicts and petition for revision filed by the complainant cannot be altered to the under section 302/34, Indian penal Code, either under section 423 or section 439, Criminal Procedure Code or both read together. The reference is answered accordingly.
(6) The case should now go back to the learned Single Judge for disposal on merits.
R.P. Khosla, J.
(7) I agree.
(8) Order accordingly.