IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.315 OF 2005

Shyam Babu Maurya        ...Appellant(s)

Versus

State of Uttar Pradesh       ...Respondent(s)

O  R  D  E  R

Appellant Shyam Babu Maurya and his co-accused Lavlesh @ Pappu and

Ram Bahadur were convicted by the trial Court for an offence under Section 302 of

the  Indian  Penal  Code,  1860  [for  short,  “I.P.C.”]  and  sentenced  to  undergo

imprisonment for life and to pay fine of rupees ten thousand each and in default to

undergo further imprisonment for a period of one year. On appeal, the High Court

altered the conviction of the appellant and his co-accused from one under Section 302

I.P.C. to Section 302 read with Section 34 I.P.C.  Hence, this appeal.  

We have heard learned counsel for the parties and perused the record.  

The case of the prosecution, as disclosed in the First Information Report,

was that the appellant and his co-accused killed Inder Dev Singh on 9.11.1999 near

the culvert of minor canal  of village  Moran by firing  shots from their

...2/-

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pistols.  The trial Court relied upon the testimony of Om Dev Singh [P.W.1] [brother

of the deceased], Devender Singh [P.W.2], a resident of village Moran and Dr. R.K.

Mishra  [P.W.6],  who  conducted  the  post  mortem and  found  that  almost  all  the

injuries were caused by fire arms and were sufficient to cause death in the ordinary

course  and  held  that  the  charge  is  proved  against  the  accused.    Accordingly,  it

convicted all the accused under Section 302 I.P.C.   The High Court independently

analyzed the entire evidence and affirmed the finding of guilt recorded by the trial

Court.   However, conviction of the appellant and his co-accused was altered from one

under Section 302 I.P.C. to Section 302 read with Section 34 I.P.C.

Learned counsel for the appellant extensively referred to the testimony of

P.W.1 and P.W.2, but could not point out any contradiction on the material aspects.

Therefore, we do not find any ground to interfere with the findings recorded by the

Courts below.      

Learned counsel then argued that the impugned judgment is liable to be

set aside because the appellant and his  co-accused had not been charged with the

allegation of having committed offence under Section 302 read with Section 34 I.P.C.

and in the absence of any specific charge, their conviction could not have been altered

from Section 302 I.P.C. to Section 302 read with Section 34 I.P.C.  In support of his

submission,  learned  counsel  placed  reliance  on  a  decision  of  this  Court  in

Shamnsaheb M. Multtani vs.  State of Karnataka [2001 (2) S.C.C. 577].   We have

carefully gone through that judgment and are of the view that the same is clearly

distinguishable. In that case, the accused appellant

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had been charged with the allegation of having committed offence under

Section 302 I.P.C.,  but he was convicted under Section 304-B I.P.C. This Court

noted that for recording a conviction under Section 304-B, a presumption could be

raised against the accused, which he was entitled to rebut by leading evidence, but,

as  no  charge  was  framed  under  Section  304-B  I.P.C.,  he  was  deprived  of

opportunity to defend himself.   Therefore, the case was remitted to the trial Court

with a direction to frame charge under Section 304-B I.P.C. and decide the matter

afresh after giving opportunity to the parties to lead evidence.  The fact situation in

this case is entirely different.  The appellant and his co-accused were charged and

were convicted by the trial Court under Section 302 I.P.C.  The High Court, as

mentioned above, altered the conviction to one under Section 302 read with Section

34 I.P.C. Learned counsel for the appellant could not show as to how his client was

prejudiced on account of non-framing of specific charge under Section 302 read

with Section 34 I.P.C.  Even otherwise, we are convinced that no prejudice was

caused to the appellant because the prosecution had come up with the case that the

accused  persons  armed with  fire  arms came together,  all  of  them fired  on the

deceased and then fled from the place of occurrence.  The appellant knew of the

nature of charge and got ample opportunity to defend himself.   The element of

common  intention  could  be  inferred  from  the  allegation  made  in  the  First

Information Report  and the  statements  of  P.Ws.  1  and  2.   Therefore,  it  is  not

possible to hold that the High Court committed any error in altering the conviction

of the appellant from Section 302 I.P.C. to Section 302 read with Section 34 I.P.C.

...4/-

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Learned counsel lastly submitted that in any case, this Court should alter

the conviction from Section 302 I.P.C. to Section 304 I.P.C. and reduce the sentence to

the period already undergone.   In our view, this is an argument of desperation and

without any basis.   If three persons fired at the deceased and many injuries were

caused by fire arms, as would appear from the post mortem report, the case cannot be

treated as  covered by any  of  the  exceptions  enumerated under  Section 300 I.P.C.

Therefore, we do not find any justification to alter the conviction of the appellants

and reduce the sentence to the period already undergone.   In the result, the appeal is

dismissed.

.......................J.      [B.N. AGRAWAL]

.......................J.      [V.S. SIRPURKAR]

.......................J.      [G.S. SINGHVI]

New Delhi, August 07, 2008.