LexABDUL AZIZ versus STATE OF RAJASTHAN
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A ABDULAZIZ v. ST A TE OF RAJAS THAN MAY 3, 2007 B [S.H. KAPADIA AND B. SUDERSHAN REDDY, JJ.] Penal Code, 1860: s.460 and 3021149-Conviction by /rial court u/s 460 substituted by C High Court u/s 3021149-Propriety of-Accused along with others, prosecuted u/ss. 302114811491460-Trial Court convicting him only u/s 460-No appeal by State-On appeal by accused, High Court, without issuing notice to him for enhancement, convicting him u/s 302 holding that trial court inadvertently convicted him u/s 460-Held, High Court was wrong in convicting the D accused u!s 302-This is travesty of justice-Judgment of High Court set aside, conviction and sentence u/s 460 by trial court restored The appellant-accused was charged along with others under sections 302, 140, 149, and 460 IPC, and was convicted by the trial court only under section 460 IPC and sentenced to ten years imprisonment No appeal was filed E by State for enhancement of sentence or for conviction u/s 302 IPC. But in the appeal filed by the appellant, the High Court convicted him u/s 302 IPC and sentenced him to life imprisonment holding that the trial court instead of convicting him u/s 302 IPC had inadvertently convicted and sentenced him u/ s 460 though considering the evidence on record he was liable to be convicted F u/s 302/149 IPC. Aggrieved, the accused filed the present appeal. Allowing the appeal in part, the Court HELD: The High Court has convicted the appellant under Section 302/ 149 IPC in his own appeal by substituting the order of conviction and sentence under Section 460 IPC passed by the trial court, holding that through G inadvertence the trial court had failed to invoke Section 302/149 IPC. No appeal was filed by the State for convicting the appellant u/s 302/149 IPC. No prior notice for enhancement was issued by the High Court. This cannot be done. This would amount to travesty of justice. Accordingly, the appellant stands convicted under Section 460 IPC. Consequently, the sentence of life II 1166 ... ABDUL AZIZ v. STATE OF RAJASTHAN [KAPADIA, J.] 1167 imprisonment, imposed by the High Court, shall stand substituted by the A sentence of rigorous imprisonment for ten years as imposed by the trial Court. [Para 9 and 11 I [1172-B-D; F-GI Re: Singaram and Anr., AIR (1954) Madras 152, distinguished. Sohan Singh Kesar Singh v. State of Punjab, AIR AIR (1964) Punjab B 130, held inapplicable. Jagdeo v. State of Uttar Pradesh, (1953) 51 Allahabad Law Journal 501, referred to. Raju @ Raj Kumar v. State of Rajasthan, Criminal Appeal No. 664 of C 2007 arising out ofS.L.P. (Crl) No. 4446 of2006 decided by Supreme Court on 3.5.2007, cited. CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 665 of 2007. From the Final Judgment and Order dated 13.01.2006 of the High Court of Judicature for Rajasthan, Jaipur Bench, Jaipur in D.B. Criminal Appeal No. 513 of2004. Jaspal Singh, R.K. Kapoor, M.K. Verma, S.S. Yadav and Govind Kaushik D (for Anis Ahmed Khan) for the Appellant. E Kumar Kartikay, V. Madhukar, Sumit Ghosh, San jay Jha and Aruneshwar Gupta for the Respondent. The Judgment of the Court was delivered by KAPADIA, J. (I) Leave granted. F (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 !PC imposed by Additional District and Sessions Judge, G Jaipur, in Session Case No.49/200 I into conviction under Section 302 !PC, 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 !PC. H 1168 SUPREME COURT REPORTS (2007] 5 S.C.R. A (3) This judgment is a sequel to our judgment in the case of Raju @ Raj Kumar v. State of Rajas than, Criminal Appeal No. 664 of2007 arising out of S.L.P. (Cr!.) 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. I. He was convicted by the trial court under Section 460 IPC. We have extensively quoted the relevant paragraphs B 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 ofUttam Prakash (pw.4), who wa
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