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CASE NO.: Appeal (crl.)  665 of 2007

PETITIONER: Abdul Aziz

RESPONDENT: State of Rajasthan

DATE OF JUDGMENT: 03/05/2007

BENCH: S. H. Kapadia & B. Sudershan Reddy

JUDGMENT: J U D G M E N T

CRIMINAL APPEAL NO.   665        OF 2007 (Arising out of S.L.P. (Crl.) No.4083 of 2006)

KAPADIA, J.

(1)     Leave granted. (2)     This criminal appeal by grant of special leave is  directed against impugned judgment dated 13.1.06  delivered by the Rajasthan High Court, Jaipur Bench, in  D.B. Criminal Appeal No.513/04 converting the  conviction under Section 460 IPC imposed by Additional  District and Sessions Judge, Jaipur, in Session Case  No.49/2001 into conviction under Section 302 IPC,  without the State filing appeal in that regard, on the  ground that the trial court had on account of  inadvertence convicted the appellant only under Section  460 IPC.

(3)     This judgment is a sequel to our judgment in the  case of Raju @ Raj Kumar v. State of Rajasthan -  Criminal Appeal No.        of 2007 arising out of S.L.P.  (Crl.) No.4446 of 2006, pronounced today.  Therefore, we  are not required to restate the case of the prosecution.   Suffice it to state that Abdul Aziz (appellant herein) was  accused No.1.  He was convicted by the trial court under  Section 460 IPC.  We have extensively quoted the relevant  paragraphs of the operative part of the judgment of the  trial court in the earlier judgment.  On the merits of the  case, we find no infirmity with the concurrent findings  recorded by the courts below.  The evidence of Uttam  Prakash (pw.4), who was present at the time when his  father was attacked by 10 to 12 persons with knives, was  the eye-witness.  He had seen the appellant entering the  room where the deceased was in conversation with pw.4’s  aunt.  Appellant was named in the FIR.  That, evidence of  pw.4 is supported by recovery and medical evidence.  

(4)     Under Section 460 IPC constructive liability is  imposed on persons jointly concerned in committing  house trespass at night, in the course of which death or  grievous hurt is caused.  The section applies to persons  who actually committed house trespass at night and the  act of causing death or grievous hurt by any one of the  intruders would make others, who did not cause the  injury, equally liable.  In the present case, the ingredients  of Section 460 IPC are complied with.  However, it is

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contended on behalf of the State that on reading the  judgment of the trial court it is clear that the trial court  has found Abdul Aziz (appellant herein) guilty of murder  and he was liable to be convicted under Section 302 IPC.   This point was argued by the State before the High Court  in the criminal appeal filed by the appellant herein.  It  has been held, in the impugned judgment delivered by  the High Court, that the trial court had instead of  convicting Abdul Aziz (appellant herein) for offence under  Section 302 IPC had inadvertently convicted and  sentenced him for offence under Section 460 IPC and  that considering the evidence on record, the appellant  herein was liable to be convicted for an offence under  Section 302/149 IPC.   

(5)     In the present case, we find that the appellant was  charged under Section 302, 148, 149 and 460 IPC but  the trial court had convicted him only under Section 460  IPC and sentenced to ten years imprisonment.  No appeal  was filed by the State for enhancement or for conviction  under Section 302 IPC and yet in the appeal filed by the  appellant the High Court has convicted him under  Section 302/149 IPC and sentenced him to life  imprisonment.

(6)     In the case of Jagdeo v. State of Uttar Pradesh \026  1953 (51) Allahabad Law Journal 501, a similar  situation arose for determination.  In that case Jagdeo  had moved the High Court in appeal against his  conviction under Section 460 IPC.  However, the High  Court had issued the notice to show cause why the  sentence passed against Jagdeo be not enhanced.  There  is no such notice in this case.  In that case Srimati Lalji  was found murdered, her ornaments were removed and  the appellant (Jagdeo) was convicted under Section 460  and sentenced to 5 years rigorous imprisonment.  It was  held that if what was alleged against the accused was  correct then an offence under Section 302 IPC was made  out and in such an event the offence would not come  under Section 460 IPC.  We quote hereinbelow the  relevant portion of the said judgment which reads as  under:     "On the facts of this particular case, the  provisions of Section 460 are not applicable for  another reason. It is not disputed that Section  460, I. P. C. will not apply to the case of a  single individual who alone commits lurking  house trespass and during such commission  causes or attempts to cause death or grievous  hurt to any person, and there is very little  evidence led about others joining the accused  in the commission of this offence.

There may arise a case in which several  persons commit lurking house-trespass and  someone among them causes or attempts to  cause death or grievous hurt. In such a case it  cannot be said that any particular person  committed those acts and it might be possible,  as held in -- ’Mohammada v. Emperor’, AIR  1936 Lah 911 (B), that all of them be liable to  conviction under Section 460, I. P. C.

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Of the cases referred to, the actual  person, who while committing lurking house- trespass also caused or attempted to cause  death or grievous hurt, was convicted in --  ’Queen v. Lukhun Doss, (1865) 2 WR Crl. 52  (A)’ and in -- ’Faiz Bakhsh v. Emperor’, 48  Cr.L.J. 269, without any discussion as to  whether his case really came within that  section or not. In the case reported in --  ’Queen - Empress v. Ismail Khan’, ILR 8 All  649 (D) an observation has been made without  any discussion to the effect:

"Sections 459 and 460 provide for a  compound offence, the governing incident  of which is that either ’a lurking house- trespass’ or ’house-breaking’ must have  been completed, in order to make a  person who accompanies that offence  either by causing grievous hurt or  attempt to cause death or grievous hurt  responsible under those sections."

It was actually decided in that case that the  accused had not committed lurking house- trespass or house-breaking and, therefore,  their conviction under Sections 459 and 460, I.  P. C. could not be maintained.

The case reported in  ’Chatur v. King  Emperor’, 8 All LJ 574 (E) is very apposite to  the present case. One person had entered a  house, attempted to rob a girl of a ’hansli’ and  stabbed her father to death when he seized the  thief. He was convicted by the sessions court  of an offence under Section 460, I. P. C. and  was sentenced to transportation for life. On  appeal his conviction was altered to Section  302, I. P. C., and in the exercise of revisional  jurisdiction the sentence of transportation for  life was enhanced to a sentence of death.  Richards, J., who delivered the judgment -  observed while interpreting Section 460, I. P.  C.:

"In our opinion this section was intended  to provide for the punishment of persons  who are jointly concerned in the  committing of the house-trespass or  house-breaking altogether irrespective  whether they were the persons who  caused or attempted to cause death or  grievous hurt."

This may be interpreted to mean that Section  460 provided for the punishment of the person  who actually caused or attempted to cause  death or grievous hurt while committing  lurking house-trespass or house-breaking.   But the observation just following the aforesaid  quoted remarks makes it clear that the section  would apply to the associates of such actual

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offender.

We cannot now alter the conviction of the  appellant to Section 302, I. P. C., and enhance  sentence in the exercise of revisional  jurisdiction, in case we come to the conclusion  on hearing full arguments that the appellant  did murder her in view of the Full Bench  decision in -- ’Taj Khan v. Rex’, AIR 1952 All  369 (FB) (F)."                     (emphasis supplied)       (7)     In re Singaram and another \026 AIR 1954 Madras  152, the case was concerning murder and robbery.  The  accused were charged and tried for offences under  Section 302/34 IPC.  The trial court convicted them  under Section 460 IPC and, therefore, the State filed an  appeal questioning the correctness of acquittal under  Section 302/34 IPC.  It was held in that case that the  trial court had wrongly convicted the accused under  Section 460 IPC; that their acquittal by the trial court  under Section 302/34 IPC was erroneous and  accordingly each of the appellants was sentenced for life  imprisonment.  The sentence of seven years imposed by  the trial court for offence under Section 460 IPC was set  aside.  However, it is important to note that in the said  case appeals were filed by the State and it is in those  appeals that the accused were convicted under Section  302/34 IPC and sentenced to life imprisonment.  In the  present case, there is no such an appeal.  In the present  case, appeal has been filed before the High Court by  Abdul Aziz (appellant herein) and not by the State.   Before us appeal has been filed by Abdul Aziz.  In the  circumstances, the High Court was wrong in convicting  Abdul Aziz for an offence under Section 302 IPC when the  trial court had convicted him under Section 460 IPC,  particularly, in the absence of any appeal from the State.   

(8)     In the case of Sohan Singh Kesar Singh v. State of  Punjab \026 AIR 1964 Punjab 130, Sohan Singh was  convicted under Sections 302, 380 and 457 IPC; he was  sentenced to death under Section 302 IPC and to  rigorous imprisonment for three years under each of the  Sections 457 and 380 IPC.  Sohan Singh preferred an  appeal against his conviction and sentence.  One of the  arguments advanced on behalf of Sohan Singh was that  the offence in question fell within the purview of Section  460 IPC and not under Section 302 IPC.  It was argued  that while committing the offence of house-breaking by  night death of the child was caused and, therefore, the  accused could be punished only under Section 460 IPC.   It was in the context of this argument that the High  Court held as follows:  "Section 460 merely provides for  constructive liability of persons committing or  corcerned in, ’inter alia’ house-breaking by  night in the course of which death is caused  by one of the offenders and it prescribes  enhanced penalty for the joint offenders. To  attract this section it matters little as to who  actually causes the death, for, everyone jointly  concerned in committing the house-breaking is  liable to the enhanced penalty under this  section if death is caused in the course of the  offence, no matter who is really responsible for

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the death. It does not, as indeed it cannot, be  considered to serve as an exception to Section  302, Indian Penal Code. If a person committing  house-breaking by night also actually commits  murder he must attract the penalty for this  latter offence under Section 302 and I find it  almost impossible to hold that he can escape  the punishment provided for murder merely  because the murder was committed by him  while he was committing the offence of house- breaking, and that he can only be dealt with  under Section 460. Neither the language of  Section 460 nor the scheme of Indian Penal  Code nor logic and common sense would seem  to support this contention which I  unhesitatingly repel."

(9)     The above judgment has no application to the point  in issue.  In that case, Sohan Singh was convicted under  Section 302.  He was sentenced to death.  If a person  commits house-breaking by night and also commits  murder, his act attracts Section 302 IPC.  There is no  dispute about the said proposition.  However, in the  present case, the appellant was charged under Sections  302, 460 and 149 IPC.  He was not convicted under  Section 302 IPC.  He was not convicted under Section  302/149 IPC.  He was convicted only under Section 460.   No appeal was filed by the State for convicting him under  Section 302 IPC.  No appeal was filed by the State for  convicting him under Section 302/149 IPC.  The High  Court has convicted Abdul Aziz (appellant herein) under  Section 302/149 IPC in his own appeal by substituting  the conviction and sentence.  No prior notice for  enhancement was issued by the High Court.  In our view,  this cannot be done.  In our view this would amount to  travesty of justice.  It is only in the impugned judgment  that High Court observed that through inadvertence the  trial court had failed to invoke Section 302/149 IPC.

(10)    For the aforestated reasons, we hold that Abdul Aziz  (appellant herein) stands convicted under Section 460  IPC and he will serve the sentence of rigorous  imprisonment for ten years and pay the fine as ordered  by Additional District and Sessions Judge, No.1 (Fast  Track)  Jaipur City, Jaipur, in Session Case No.49/2001  decided on 9.3.2004.

(11)    Consequently, the sentence of life imprisonment,  imposed by the impugned judgment of the High Court,  shall stand substituted by the sentence of rigorous  imprisonment for ten years and fine of Rs.500/- (in  default, three months sentence) as imposed by the trial  court vide its judgment dated 9.3.2004 in Session Case  NO.49/2001.

(12)    Accordingly, the appeal is partly allowed.