LexLAKHAN MAHTO & ORS. versus STATE OF BIHAR
Open in Lexace · Ask the AI about this caseJudgment (excerpt)
B c D ' _, E F G H LAKHAN MAHTO & ORS. v. STATE OF BIHAR February 24, 1966 (K. SUBBA RAo AND V. RA.MAsWAMI, JJ.] Code of Criminal Procedure (Act 5 oJ 1898), s. 423-Appial azainst conviction, no appeal again.rt acquittal-Power of Ap~llate Court. Indian Penal Code, 1860 (Act 45 of 1860), s. 149-Substantive offence, if. The trial court acquitted L, one of the appellantls 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 appeal preferred by L against his conviction, the High Court altered the conviction from s. 302/ 149 to a minor offence under s. 326 and main- tained 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 convict- ing 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 O<"dCf' of conviction that falls to be considered by the Appellate Court and not the order of acquittal. In exercising tho 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-FJ State of Andhra Pradesh v. Thadi N<JTayana, 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 oection for imposition of vicarious liability and that the convic- tion on vicarious liability could, therefore, be altered by the appellate court to conviction for direct liability even though there wa• an acquit- tal by the trial court of the direct liability for 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, HJ Barendra Kumar Ghosh v. Emperor, I.L.R. 52 Cal. 197, Queen v. $abid Ali and Ors. [1873] 20 W.R. (Cr.) 5 Nanak Chand'"· State of Pu,.. ;ah, [1955] 1 S.C.R. 1201 and Suraj Pal v. State of Uttar Pradesh, [1955] 1 S.C.R. 1332, referred to. 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. ~44 SuPREME COURT REPORTS (1966] 3 S.C.R. 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 sen- tenced to rigorous imprisonment for one year. Inda 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 separate sentence was awarded on this charge. Lakhan and I ndo were convicted under s.19(f) ofthe 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 under ss. 302/149, 326/149, 148 and 147, Indian Penal Code. 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 appella
Excerpt shown. Read the full judgment & AI analysis in Lexace.