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PETITIONER: LAKHAN MAHTO & ORS.

       Vs.

RESPONDENT: STATE OF BIHAR

DATE OF JUDGMENT: 24/02/1966

BENCH: RAMASWAMI, V. BENCH: RAMASWAMI, V. SUBBARAO, K.

CITATION:  1966 AIR 1742            1966 SCR  (3) 643  CITATOR INFO :  D          1990 SC1180  (11)

ACT: Code  of Criminal Procedure (Act 5 of 1898),  s.  423-Appeal against  conviction,  no appeal against  acquittal-Power  of Appellate Court. Indian Penal Code, 1860 (Act 45 of 1860), s. 149-Substantive offence, if.

HEADNOTE: The  trial court acquitted L, one of the appellants  of  the charge  under s. 302 I.P.C. but convicted him and the  other appellants  under s. 149 I.P.C. and ss. 302/149  I.P.C.  The State Government did not prefer an appeal to the High  Court against  the  acquittal  of  L under s.  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   s.   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  s.  302 I.P.C. and convicting him on the charge under s. 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   s. 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 s. 439 of the Criminal  Procedure Code. [647 D-F] State of Andhra Pradesh v. Thadi Narayana, A.I.R. 1962 S. C. 240, applied. The  High Court erred in taking the view that s. 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

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the- offence.  There is a legal distinction between a charge under  s. 302 I.P.C. and a charge of constructive  liability under  s.  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 v. Emperor, I.L.R. 52 Cal. 197,  Queen v. Sabid Ali and Ors. [1873] 20 W.R. (Cr.) 5 Nanak Chand  v. State of Punjab, [1955] 1 S.C.R. 1201 and Suraj Pat v. State of Uttar Pradesh, (19551 1 S.C.R. 1332. referred to.

JUDGMENT: CRIMINAL APPELLATE JURISDICTION: Criminal 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  ss. 302/149,  Indian  Penal Code and sentenced them  to  undergo rigorous  imprisonment  for  life.   Lakhan  and  Indo  were convicted  under s. 148, Indian Penal Code and sentenced  to undergo  rigorous  imprisonment for two years and  Gopi  was convicted  under s. 147, Indian Penal Code and sentenced  to rigorous   imprisonment  for  one  year.   Indo   was   also -convicted  under  s. 326, Indian Penal Code  and  Gopi  was convicted  under  s.  326/109, Indian Penal  Code  and  were sentenced to undergo rigorous imprisonment for eight  years. Appellant  Lakhan  was convicted under ss.  326/149,  Indian Penal  Code  but  no separat sentence was  awarded  on  this charge.   Lakhan and Indo were convicted under s.  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 ss. 302/149, Indian Penal Code, s. 148,  s. 147  and ss.  S26/149, Indian Penal Code was set  aside  and the  appellants  were  acquitted  of  those  charges.    The conviction of Lakhan under s. 302/149, Indian Penal Code was altered  into  a minor offence under s.  326,  Indian  Penal Code, but the sentence of life imprisonment imposed upon him was  maintained.  The conviction and sentence of Indo  under s.  326,  Indian Penal Code and of Gopi under  ss.  326/109, Indian Penal Code were upheld.  The conviction and  sentence of Lakhan and Indo under s. 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

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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.  Mst.  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 s. 302, Indian Penal Code for causing the death of Sheosahay as it appeared from  the  dying declaration of the deceased  (Ex.  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  s.  148, Indian Penal Code and  ss.  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  s.  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 s. 302/149, Indian Penal Code to a minor offence under s. 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 s. 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  s. 149  to a minor offence under s. 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 s. 302, Indian Penal Code for the overt act  of shooting  at  the deceased Sheosahay and  he  was  convicted under  ss. 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 s. 302, Indian Penal Code.  It

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was submitted that the High Court cannot, in the absence  of an  appeal  preferred in this behalf, convict  Lakhan  again under  s.  302, Indian Penal Code or under  s.  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  s. 302,   I.P.C.  read  with  s.  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  s.  326,  I.P.C. was  illegal  and  must  be quashed. The powers of the appellate court in disposing of an  appeal are  prescribed  by s. 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 v.  Thadi  Narayana(1) that  s.  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

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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   s. 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 s.  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 s. 302, Indian Penal  Code  and convicting him on the charge under s. 326, Indian Penal Code and imposing a sentence of imprisonment on that charge. In this connection the High Court has taken the view that s. 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 s.  302, I.P.C.  and  a charge of constructive  liability  under  ss. 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 v. Emperor  (2) Lord Sumner dealt with (1) A.I.R. 1962 S.C. 240. (2) I.L.R. 52 Cal. 197. 648 the argument that if s. 34 of the Indian Penal Code bore the meaning adopted by the Calcutta High Court, then ss. 114 and 149  of that Code would be otiose.  In the opinion  of  Lord Sumner, however, s. 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 s. 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  v. Sabid All and Others(1).  The observation of  Lord Sumner was quoted with approval by this Court in Nanak Chand v.  The State of Punjab(2) in which it was pointed out  that by  framing a charge under s. 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 s. 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 s. 302, I.P.C. was illegal.  The same view  has been reiterated by this Court in a ’later case  in Suraj Pal v. The State of Uttar Pradesh.(3) For  these reasons we hold that the conviction and  sentence imposed  by  the High Court on Lakhan under s.  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

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sentence  imposed  on  Lakhan on the charge  under  s.  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. (2)  [1955] 1 S.C.R. 1201. (3)  [1955] 1 S.C.R. 1332. 649