MALA SINGH & ORS. versus STATE OF HARYANA

Citation: [2019] 3 S.C.R. 932 · Decided: 12-02-2019 · Supreme Court of India · Bench: ABHAY MANOHAR SAPRE · Disposal: Case Partly allowed

Cited by 1 judgment(s) · cites 3 · see the full citation network in Lexace

Judgment (excerpt)

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932                    SUPREME COURT REPORTS            [2019] 3 S.C.R.
MALA SINGH & ORS.
v.
STATE OF HARYANA
(Criminal Appeal No.1144 of 2009)
FEBRUARY 12, 2019
[ABHAY MANOHAR SAPRE AND
R. SUBHASH REDDY, JJ.]
Penal Code, 1860 – s. 302/149 or s. 302/34 – Conviction
under – Trial Court convicted 11 accused persons u/ss. 148, 302/
149, 323/149 and 506/149 IPC – However, High Court acquitted 8
accused persons u/s. 302/149 IPC and upheld the conviction in
respect of 3 accused persons u/ss.302/34 IPC – The 3 accused
persons filed appeal in Supreme Court – During the pendency of
appeal, one appellant No.1-accused expired – Held: Once 8 co-
accused were acquitted by the High Court u/s. 302/149 IPC and
their acquittal had attained finality, the charge u/s. 149 IPC
collapsed against the three appellant-accused – Also, there could
be no unlawful assembly consisting of less than five accused persons
– Therefore, appellants could not be charged u/s. 149 IPC for want
of numbers – Insofar as s.34 IPC is concerned, in absence of any
evidence of common intention qua the three appellants so as to
bring their case u/s. 34 IPC and the High Court having failed to
given any reasons in support of altered conviction, their conviction
u/s. 302/34 IPC not legally sustainable.
Penal Code, 1860 – Alteration of conviction from offence u/
s. 302/34 IPC to s. 324 IPC – Held: Out of the 11 accused persons
convicted u/s.148, 302/149, 323/49, 8 persons were completely let
of and their acquittal had attained finality – Further, at the appellate
stage no evidence was relied on by the prosecution to sustain the
charge of s.34 IPC qua the 3 accused persons independent of 8
acquitted co-accused – Out of two main accused assailants, one
(appellant no.1) has died and other was acquitted – There was no
reasoning given by the High Court for sustaining the conviction of
the 3 appellants-accused in support of alteration of the charge to
s.302/34 IPC in place of s.302/149 IPC – Also, as per post-mortem
report, both the assault made by the appellant nos. 2 and 3 caused
simple injury to the victim – In light of these circumstances, the two
[2019] 3 S.C.R. 932
932
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appellants entitled to claim benefit and seek alternation of their
conviction for commission of the offence punishable u/s. 324 IPC
than to suffer conviction u/s. 302/34 IPC – Thus, appellant nos.2
and 3 convicted u/s. 324 IPC on basis of their individual
participation in the commission of the crime.
Partly allowing the appeal, the Court
HELD: 1. Once eight co-accused were acquitted by the
High Court under Section 302/149 IPC by giving them the benefit
of doubt and their acquittal attained finality, the charge under
Section 149 IPC collapsed against the three appellants also
because there could be no unlawful assembly consisting of less
than five accused persons. In other words, the appellants (3 in
number) could not be then charged with the aid of Section 149
IPC for want of numbers and were, therefore, rightly not
proceeded with under Section 149 IPC. [Para 55][949-B]
2. Keeping in view the law laid down by this Court, the
High Court though had the jurisdiction to alter the charge from
Section 149 IPC to Section 34 IPC qua the three appellants, yet
in the absence of any evidence of common intention qua the three
appellants so as to bring their case within the net of Section 34
IPC, their conviction under Section 302/34 IPC is not legally
sustainable. [Para 56][949-C, D]
3. The prosecution never came with a case that all the 11
accused persons shared a common intention under Section 34
IPC to eliminate victim and nor came with a case even at the
appellate stage that only 3 appellants had shared common
intention independent of 8 co-accused to eliminate victim. When
prosecution did not set up such case at any stage of the
proceedings against the appellants nor adduced any evidence
against the appellants that they (three) prior to date of the
incident had at any point of time shared the “common intention”
and in furtherance of sharing such common intention came on
the spot to eliminate victim and lastly, the High Court having
failed to give any reasons in support of altered conviction except
saying in one line that conviction is upheld under Section 302/34
IPC in place of Section 302/149 IPC, the invoking of Section 34
IPC at the appellate stage by the High Court cannot be upheld.
[Paras 62 and 63][950-B-E]
MALA SINGH & ORS. v. STATE OF HARYANA
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934       

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