Convicted by the High Court for the offence punishable under Section 302 read with Section 34 of the Indian Penal Code, 1860 (Para 1)
The High Court partly allowed the appeal of the present appellant and accused nos. 1,14 and 16 by substituting their conviction under Section 302 read with Sections 148 and/or 149 of IPC with Section 302 read with Section 34 of IPC. The appellant’s conviction for the offence punishable under Section 201 of IPC was maintained. (Para 6)
The appellant could not have been convicted with the aid of Section 34 of IPC as there was no evidence of common intention, which was necessary for attracting Section 34 of IPC. Moreover, the appellant and other accused ought to have been put to notice by the High Court that it intended to modify the charge for invoking Section 34. He submitted that prejudice has been caused to the appellant by alteration of the charge apart from the fact that ingredients of Section 34 of IPC were not proved. Hence, the appellant is entitled to acquittal. (Para 9)
He submitted that there was enough evidence on record to prove the ingredients of Section 34 of IPC. He invited our attention to the gravity of the offence and submitted that no interference is called for. (Para 10)
There is no reason recorded in the impugned judgment to show that Section 34 of IPC was applicable. There is no discussion on this aspect in the judgment. Only in the operative part (paragraph 15), without assigning any reasons, the High Court held that the appellant was liable to be convicted for the offence punishable under Section 302, read with Section 34 of IPC. As stated earlier, there is a complete absence of any reason for concluding that Section 34 of IPC was attracted. The High Court has not recorded a finding that there was sufficient evidence to prove that the four accused who were ultimately convicted had done the criminal act in furtherance of a common intention. (Para 14)
There is no evidence of the presence of common intention. Only the act of stopping the deceased Uma Prasad will not, by itself, bring the case within the purview of Section 34 of IPC. There is no overt act attributed to the appellant by any prosecution witness in the assault on deceased Uma Prasad. It is difficult to infer a prior meeting of minds in this case. There is no material to prove the existence of common intention which is the necessary ingredient of Section 34 of IPC. In this case, there is no overlap between a common object and a common intention. Therefore, the conviction of the appellant under Section 302, read with Section 34 will have to be set aside. (Para 18)
However, the evidence of two eyewitnesses (PW1 and PW2) is very consistent on the role played by the appellant in dragging the dead body of the deceased and throwing the same into a well. There is hardly any cross-examination on this aspect of both PW1 and PW2. Therefore, there is every justification for convicting the appellant for the offence punishable under Section 201 of IPC of causing the disappearance of the evidence of the crime. Hence, the conviction and sentence of the appellant for the offence under Section 201 of IPC will have to be maintained. The order dated 20th April 2012 passed in this appeal records that the appellant was enlarged on bail as he remained incarcerated for about nine years. The appellant was sentenced to undergo rigorous imprisonment for five years for the offence under Section 201 of IPC, which he has already undergone. (Para 19)
SUPREME COURT OF INDIA
2023 STPL(Web) 325 SC
[2023 INSC 887]
Chandra Pratap Singh Vs. State Of M.P.
Criminal Appeal No. 1209 of 2011-Decided on 9-10-2023
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