Mala Singh vs The State Of Haryana

2. In order to appreciate the controversy involved in this appeal, it is necessary to set out the facts in detail hereinbelow.

4. Additional Sessions Judge, Faridabad, by judgment/order dated 04.12.1998, convicted all the accused (A­1 to A­11) under Sections 148, 302/149, 323/149 and 506/149 IPC and accordingly sentenced them to undergo life imprisonment apart from imposing 2 other lesser sentences. The Additional Sessions Judge held that the prosecution was able to prove the case against all the accused persons (A­1 to A­11) beyond reasonable doubt and, therefore, all of them deserve to be convicted accordingly.

8. The three accused persons, namely, Mala Singh(A­7), Phuman Singh(A­8) and Kashmiro(A­9), who 4 suffered the conviction/sentence felt aggrieved by the aforesaid order of the High Court and they filed the present appeal by way of special leave in this Court.

15. The death of Mahendro Bai occurred as a result of some disputes between the members of one family. One group consisted of one branch of brothers, their sons and the wives whereas the other group consisted of another branch of brothers, their sons and the wives. The dispute was in relation to the ownership and possession of an ancestral property of the family members, i.e., one agricultural land. 6

29. In substance, the submission was against the splitting of the charges at the appellate stage by the High Court for convicting the appellants under Section 302/34 IPC and acquitting the remaining eight co­ accused persons under Section 302/149 IPC but not extending the similar benefit of acquittal to the appellants herein.

39. Second, whether the High Court was justified in altering the charge under Section 149 to one under 16 Section 34 in relation to three accused (appellants herein) after acquitting eight co­accused 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?

7. By impugned order, the High Court allowed the appeal in respect of the eight accused persons, namely, A­1 to A­6, A­10 & A­11 and acquitted them from all the charges whereas dismissed the appeal in respect of three accused persons, namely, A­7 to A­9 and accordingly upheld their conviction by taking recourse to Section 34 IPC. In other words, the High Court upheld the conviction under Section 302 read with Section 34 IPC in place of 302/149 IPC.

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 re­tried or committed for trial, as the case may be, or find him guilty and pass sentence on him according to law;

34.”

60. Section 34 IPC does not, by itself, create any offence whereas it has been held that Section 149 IPC 32 does. As mentioned above, the prosecution pressed their case since inception and accordingly adduced evidence against all the accused alleging that all were the members of unlawful assembly under Section 149 IPC and not beyond it. The Sessions Court, therefore, rightly framed a charge to that effect.

63. When prosecution did not set up such case at any stage of the proceedings against the appellants nor adduced any evidence against the appellants that they (three) prior to date of the incident had at any point of time shared the "common intention" and in furtherance of sharing such common intention came on the spot to eliminate Mahendro Bai and lastly, the High Court having failed to give any reasons in support of altered conviction except saying in one line that conviction is upheld under Section 302/34 IPC in place of Section 302/149 IPC, the invoking of Section 34 IPC at the appellate stage by the High Court, in our view, cannot be upheld.

64. True it is that “Lalkara” was given by Mala Singh ­ appellant No.1 (since dead) but it was not to eliminate Mahindrao Bai ­ the deceased.

65. Learned counsel for the respondent(State) was not able to point out any evidence that the appellants 34 ever shared common intention to eliminate Mahendro Bai independent of acquitted eight accused. We are, therefore, unable to find any basis to sustain the conviction of the appellants under Section 302 read with Section 34 IPC for want of any evidence of the prosecution.

66. Now we come to the next issue. It has come in evidence that Mala Singh(A­7) hit with a Farsa and Puran Singh(A­3) fired gun shot which hit Mahendro Bai. As per post­mortem report, Mahendro Bai died due to gun shot injury. So far as the role of appellant Nos. 2 and 3 in the crime is concerned, both hit single blow ­ one on hand and other on cheek of Mahendro Bai prior to other two accused­Mala Singh and Puran Singh inflicting their assault on her.

67. As per post­mortem report, both the assault made by the appellant Nos. 2 and 3 caused simple injury to Mahendro Bai which did not result in her 35 death and nor could result in her death. (see injury Nos. 2 and 3 in the evidence of PW­3 Dr. P.S. Parihar)

69. We are, therefore, of the considered opinion that appellant Nos. 2 and 3 could at best be convicted for an offence punishable under Section 324 IPC and not beyond it on the basis of their individual participation in the commission of the crime.

71. Taking into consideration the fact that the appellants Nos. 2 and 3 have already undergone seven years of jail sentence and appellant No. 3 is an aged lady and is also on bail for the last 10 years and that both did not breach any condition of the bail in last the 10 years, we are inclined to allow the appeal and while setting aside the conviction and sentence of the appellant Nos. 2 and 3 under Section 302/34 IPC, convert their conviction under Section 324 IPC and sentence them to what they have “already undergone” and impose a fine of Rs.10,000/­ on each appellant and in default in payment of fine, to further undergo three months’ simple imprisonment.

72. In other words, the appellants (Nos.2 & 3) need not undergo any jail sentence than what they have already undergone provided each of the appellants deposit Rs.10,000/­ as fine amount within three months from the date of this order else both the 38 appellants will have to undergo three months simple imprisonment in default of non­deposit of fine amount.

73. Before parting, we place on record a word of appreciation for the valuable services rendered by Mr. Karan Bharihoke amicus curiae appointed by this Court. He argued the case ably and fairly and also filed effective written submissions, which enabled us to examine the issue involved in this appeal properly.

74. The appeal thus succeeds and is allowed in part. The impugned order is modified to the extent indicated above.