minal Appeal No. 214 of 1963.
Appeal by special leave from the judgment and order dated September 18, 1963 of the Patna High Court in Criminal Appeal No. 368 of 1961.
644 Nur ud din Ahmed and D. Goburdhun, for the appellants.
The respondent did not appear.
The Judgment of the Court was delivered by Ramaswami, J.
This appeal is brought, by special leave, from the judgment of the High Court of Patna dated September, 1963 in Criminal Appeal No. 368 of 1961.
The appellant, alongwith 13 others, was tried by the Additional 'Sessions Judge of Patna who by his judgment dated April 22, 1961 convicted all the accused under sections 302/149, Indian Penal Code and sentenced them to undergo rigorous imprisonment for life.
Lakhan and Indo were convicted under section 148, Indian Penal Code and sentenced to undergo rigorous imprisonment for two years and Gopi was convicted under section 147, Indian Penal Code and sentenced to rigorous imprisonment for one year.
Indo was also convicted under section 326, Indian Penal Code and Gopi was convicted under section 326/109, Indian Penal Code and were sentenced to undergo rigorous imprisonment for eight years.
Appellant Lakhan was convicted under sections 326/149, Indian Penal Code but no separat sentence was awarded on this charge.
Lakhan and Indo were convicted under section 19(f) of the Arms Act and sentenced to undergo rigorous imprisonment for two years each.
Five of the accused persons were acquitted and 8 of them were convicted on charges The appellants alongwith 8 others who were so convicted, appealed to the High Court of Patna which allowed the appeal of the 8 persons but dismissed the appeal of the appellants with the following modifications: The conviction of the appellants under sections 302/149, Indian Penal Code, section 148, section 147 and sections S26/149, Indian Penal Code was set aside and the appellants were acquitted of those charges.
The conviction of Lakhan under section 302/149, Indian Penal Code was altered into a minor offence under section 326, Indian Penal Code, but the sentence of life imprisonment imposed upon him was maintained.
The conviction and sentence of Indo under section 326, Indian Penal Code and of Gopi under sections 326/109, Indian Penal Code were upheld.
The conviction and sentence of Lakhan and Indo under section 19(f) of the Arms Act were also upheld.
The case of the prosecution is that on October, 7, 1959 at about 10 a.m. deceased Sheosahay Mahto went to look after his paddy field in Belwa Khandha.
On arriving at the spot, he found appellant Lakhan and one Ishwar putting up a net for catching fish in his field after cutting one of its ridges.
Sheosahay protested and there was an altercation between the parties.
Sheosahay threw aside the net and Ishwar and appellant Lakhan went away towards the village.
Sheosahay then repaired the ridge of the 645 field and after weeding some grass he was returning to the village along the Bazerachak Road.
While he was passing by the side of a brick kiln, appellant Lakhan suddenly emerged from behind it with a pistol in his hand and fired at Sheosahay hitting him on his chest.
Sheosahay staggered for a few steps and fell down at the house of one Baiju.
There were 15 or 20 other persons variously armed in the company of Lakhan.
Akhji P.W. 3 wife of Jitu P.W.7 heard the report of a gunfire while she was in her house situated near the house of Baiju.
She came out of her house and saw Sheosahay lying fallen in the village lane.
She protested to Gopi who became furious and ordered that she should be assaulted.
Upon his order, Rajendra who was carrying a gun fired at Akhji, P.W.3 on her left arm.
After committing the assault all the members of the mob fled away.
On the same evening, at about 5 p.m. a first information report was drawn up by the Assistant SubInspector of Police, P.W. 14 on the statement of Sheosahay and both the injured persons were forwarded to Nawadah hospital where Sheosahay died early next morning.
The appellants pleaded not guilty to the charges and alleged that they were falsely implicated on account of previous enmity.
The trial court held that it was unsafe to convict appellant Lakhan on the specific charge under section 302, Indian Penal Code for causing the death of Sheosahay as it appeared from the dying declaration of the deceased (exhibit 8) that accused Ishwar had also shot at him and as such appellant Lakhan was entitled to benefit of doubt.
The trial court accordingly acquitted Lakhan on the charge under s.302, Indian Penal Code but convicted him and 2 other appellants under section 148, Indian Penal Code and sections 302/149, Indian Penal Code.
The State Government did not prefer an appeal to the High Court against the acquittal of Lakhan on the charge under section 302, Indian Penal Code but on appeal preferred by the appellant against the judgment of the Sessions Judge, the High Court altered the conviction of Lakhan from section 302/149, Indian Penal Code to a minor offence under section 326, Indian Penal code and maintained the sentence of life imprisonment imposed upon him.
The view taken by the High Court was that the evidence of P.Ws. 1, 6, 7 and 8 should be accepted as true and it must he held that it was Lakhan who fired the pistol at the deceased and it was Lakhan alone who fired the pistol shot and not Ishwar.
The High Court held that it was competent to it in the appeal preferred by the appellant to alter the conviction of Lakhan from the constructive offence under section 302/149, Indian Penal Code to the substantive offence under s.302, Indian Penal Code, but "in order to obviate any technical objection" the High Court altered the conviction under s.302 read with section 149 to a minor offence under section 326, Indian Penal Code and regard being had to the gravity of the offence, the High Court maintained the sentence imposed upon Lakhan. 646 On behalf of appellant Lakhan learned Counsel submitted that he had been acquitted by the trial court on the specific charge under section 302, Indian Penal Code for the overt act of shooting at the deceased Sheosahay and he was convicted under sections 302/149, Indian Penal Code for being a member of an unlawful assembly, the common object of which was to kill deceased Sheosahay.
It was pointed out that the State Government had not preferred an appeal against the acquittal of Lakhan on the charge under section 302, Indian Penal Code.
It was submitted that the High Court cannot, in the absence of an appeal preferred in this behalf, convict Lakhan again under section 302, Indian Penal Code or under section 326, Indian Penal Code for the overt act of shooting.
It was also pointed out for the appellant that there was the finding of the High Court that there was no unlawful assembly and consequently Lakhan was acquitted of the charge under section 302, I.P.C. read with section 149, I.P.C. The argument, therefore, presented on behalf of appellant Lakhan is that the conviction and sentence of Lakhan for a substantive offence under section 326, I.P.C. was illegal and must be quashed.
The powers of the appellate court in disposing of an appeal are prescribed by section 423 of the Criminal Procedure Code which states "423.(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 41 1 A, subsection (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 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 sub ordinate 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;" Section 423 (1)(a) expressly deals with an appeal from an order of acquittal and it empowers the Appellate Court to reverse the 647 order of acquittal and direct that further inquiry be made or that the accused may be tried or committed for trial, as the case may be, or it may find him guilty and pass sentence on him according to, law.
Section 423(1)(b) in terms deals with an appeal from a conviction, and it empowers the Appellate Court to reverse the finding and sentence and acquit or discharge the accused or order a retrial by a Court of competent jurisdiction subordinate to such Appel late Court or committed for trial.
It has been held by this Court in The State of Andhra Pradesh vs Thadi Narayana(1) that section 423(1)(b), Criminal Procedure Code is clearly confined to cases of appeals prefeffed against orders of conviction and sentence, and that the powers conferred by this clause cannot be exercised for the purpose of reversing an order of acquittal passed in favour of a party in respect of an offence charged while dealing with an appeal preferred by him against the order of conviction in respect of another offence charged and found proved.
It was also pointed out in that case that where several offences are charged against an accused person the trial is no doubt one; but where the accused person is acquitted of some offences and convicted of others the character of the appellate proceedings and their scope and extent is necessarily determined by the nature of the appeal preferred before the Appellate Court.
If an order of conviction is challenged by the convicted person but the order of acquittal is not challenged by the State then it is only the order of conviction that falls to be considered by the Appellate Court and not the order of acquittal.
In exercising the powers conferred by section 423(1)(b) the High Court cannot therefore convert the order of acquittal into one of conviction and that result can be achieved only be adopting procedure prescribed under section 439 of the Criminal Procedure Code.
In our opinion, the principle of this decision applies to the present case and it must accordingly be held that the High Court acted without jurisdiction in altering the finding of acquittal of Lakhan on the charge under section 302, Indian Penal Code and convicting him on the charge under section 326, Indian Penal Code and imposing a sentence of imprisonment on that charge.
In this connection the High Court has taken the view that section 149, I.P.C. does not constitute a substantive offence and it was only an enabling section for imposition of vicarious liability and the conviction on vicarious liability can, therefore, be altered by the appellate court to conviction for direct liability, though there was an acquittal by the trial court of the direct liability of the offence.
In our opinion, the view taken by the High Court is not correct.
There is a legal distinction between a charge under section 302, I.P.C. and a charge of constructive liability under sections 302/149, I.P.C., i.e., being a member of an unlawful assembly, the common object of which was to kill the deceased Sheosahay.
In Barendra Kumar Ghosh vs Emperor (2) Lord Sumner dealt with (1) ; (2) I.L.R. 648 the argument that if section 34 of the Indian Penal Code bore the meaning adopted by the Calcutta High Court, then sections 114 and 149 of that Code would be otiose.
In the opinion of Lord Sumner, however, section 149 was certainly not otiose, for in any case it created a specific and distinct offence.
It postulated an assembly of five or more persons having a common object, as named in section 141 of the Indian Penal Code and then the commission of an offence by one member of it in prosecution of that object.
Lord 'Sumner referred, in this connection, to the decision of the Calcutta High Court in Queen vs Sabid All and Others(1).
The observation of Lord Sumner was quoted with approval by this Court in Nanak Chand vs The State of Punjab(2) in which it was pointed out that by framing a charge under section 302, read with s.149, Indian Penal ,Code against the appellant it was not charging the appellant with the offence of murder and to convict him for murder and sentence him under section 302 of the Indian Penal Code was to convict him of an offence with which he had not been charged.
It was accordingly held that the conviction of the appellant under section 302, I.P.C. was illegal.
The same view has been reiterated by this Court in a 'later case in Suraj Pal vs The State of Uttar Pradesh.(3) For these reasons we hold that the conviction and sentence imposed by the High Court on Lakhan under section 326, Indian Penal Code is illegal and must be set aside.
On behalf of the appellants it was also contended that the prosecution had not been able to establish the other charges of which they have been convicted, but having heard learned Counsel we are not satisfied that the convictions on the other charges are vitiated by any illegality and we see no reason for interfering with the judgment of the High Court.
As already pointed out, we set aside the conviction and sentence imposed on Lakhan on the charge under section 326, Indian Penal Code; otherwise we affirm the decision of the High Court as regards Lakhan and also as regards the other two appellants and dismiss ,this appeal.
Appeal dismissed.
Conviction and sentence modified.
(1) [1873] 20 W.R. (Cr.) 5.

Summary:
The trial court acquitted L, one of the appellants of the charge under section 302 I.P.C. but convicted him and the other appellants under section 149 I.P.C. and sections 302/149 I.P.C.
The State Government did not prefer an appeal to the High Court against the acquittal of L under section 302 but on appeo preferred by L against his conviction, the High Court altered the conviction from a. 302/149 to a minor offence under section 326 and maintained the sentence of life imprisonment imposed upon him.
In appeal to this Court : HELD : The High Court acted without jurisdiction in altering the finding of acquittal of L on the charge under section 302 I.P.C. and convicting him on the charge under section 326 I.P.C. and imposing a sentence of imprisonment on that charge.
If an order of conviction is challenged by the convicted person but the order of acquittal is not challenged by the State then it is only the order of conviction that falls to be considered by the Appellate Court and not the order of acquittal.
In exercising the powers conferred by section 423(1)(b) of Code of Criminal Procedure the High Court could not convert the order of the acquittal into one of conviction and that result can be achieved only by adopting procedure prescribed under section 439 of the Criminal Procedure Code.
[647 D F] State of Andhra Pradesh vs Thadi Narayana, A.I.R. 1962 section C. 240, applied.
The High Court erred in taking the view that section 149 I.P.C. did not constitute a substantive offence and that it was only an enabling section for imposition of vicarious liability and that the conviction on vicarious liability could, therefore, be altered by the appellate court to conviction for direct liability even though there was an acquittal by the trial court of the direct liability for the offence.
There is a legal distinction between a charge under section 302 I.P.C. and a charge of constructive liability under section 302/149, I.P.C., I.e., being a member of an unlawful assembly, the common object of which was to kill a person.
(647 G, H] Barendra Kumar Ghosh vs Emperor, I.L.R. , Queen vs Sabid Ali and Ors.
[1873] 20 W.R. (Cr.) 5 Nanak Chand vs State of Punjab; , and Suraj Pat vs State of Uttar Pradesh, (19551 1 S.C.R. 1332.
referred to.