Case Note & Summary
This criminal appeal by special leave arose from the conviction of the appellant Sukh Ram under Section 302 read with Section 34 of the Indian Penal Code, 1860 for the murder of Chunni Lal. The prosecution case was that on 9 March 1967 at about 10:30 p.m., near the bus stand in Sasni, Chunni Lal, who had a tea stall, was shot dead. The first information report was lodged by Sunder Lal, a relation of the deceased. The prosecution examined Sunder Lal, Radhey Shyam, Puran Mal and Devi Prasad to prove the involvement of three accused: Mahendra Singh, Lakhan Singh and Sukh Ram. The Sessions Judge, Aligarh, believed the prosecution witnesses and acquitted Mahendra Singh but convicted Sukh Ram and Lakhan Singh, sentencing them to imprisonment for life. On appeal, the High Court of Allahabad acquitted Lakhan Singh, finding it unsafe to rely on the sole testimony of Kunwarji for his identification, but affirmed the conviction and sentence of Sukh Ram. The High Court found that the evidence established that Sukh Ram was among three assailants who murdered Chunni Lal, and that the fatal shot was fired by one of the other two in furtherance of the common intention of all three. The principal legal question before the Supreme Court was whether the appellant could be convicted under Section 302 read with Section 34 IPC after the acquittal of the two other accused specifically named in the charge. The charge framed by the Sessions Judge specifically mentioned that the murder was committed by Sukh Ram, Lakhan Singh and Mahendra Singh, without referring to any other persons. However, the prosecution evidence led to the conclusion that the murder was committed by the appellant and two other persons, not necessarily the named co-accused. The appellant argued that since the two named co-accused were acquitted, it was impermissible to convict him under Section 34 IPC with the aid of persons not named in the charge. The State maintained that the evidence proved the appellant's participation with two others in a common intention to murder, and that no prejudice resulted from the variance between the charge and the evidence. The Supreme Court dismissed the appeal, holding that the acquittal of the named co-accused did not bar the appellant's conviction. The Court observed that the true touchstone in such matters is whether the accused suffered prejudice because of the variance between the charge and the evidence. Here, the defence adopted by the appellant in cross-examination showed awareness of the substance and true nature of the allegations. The Sessions Judge, while examining the appellant under Section 342 of the Code of Criminal Procedure, had questioned him about his participation with 'companions' rather than the named co-accused. The High Court was certain that there were three culprits, including the appellant. Therefore, no prejudice was caused. The Supreme Court relied on Dalip Singh v. State of Punjab, Bharwad Mepa Dana v. State of Bombay and Kartar Singh v. State of Punjab, and distinguished Mohan Singh v. State of Punjab and Krishna Govind Patil v. State of Maharashtra. Accordingly, the appeal was dismissed and the conviction and sentence of the appellant under Section 302 read with Section 34 IPC were upheld.
Headnote
A) Criminal Law - Common Intention - Conviction under Section 34 IPC after acquittal of named co-accused - Indian Penal Code, 1860, Sections 302, 34 and Code of Criminal Procedure, 1898, Section 342 - Charge framed against three named accused but evidence established appellant and two others committed murder; no prejudice to appellant as defence adopted showed awareness of allegations; acquittal of named co-accused raises no bar to conviction if evidence proves common intention with other persons; possible prejudice to accused on reasonable view of trial is touchstone - Held conviction valid (Paras 1-6)
Issue of Consideration
Whether the appellant can be convicted under Section 302 read with Section 34 IPC after the acquittal of the two other accused specifically named in the charge when the charge confined participation to those three named individuals but evidence showed the murder was committed by the appellant and two other persons?
Final Decision
Appeal dismissed; conviction and sentence of appellant under Section 302 read with Section 34 IPC upheld. The Supreme Court held that despite acquittal of two named co-accused, the appellant could be convicted because the evidence established he participated in the murder with two other persons in furtherance of common intention, and no prejudice was caused by the variance between charge and evidence.
Law Points
- Acquittal of named co-accused does not bar conviction under Section 34 IPC if evidence shows accused acted with others in furtherance of common intention
- Prejudice to accused is the touchstone when there is variance between charge and evidence
- Section 342 CrPC examination can indicate awareness of true nature of allegations
- Common intention under Section 34 IPC requires participation in furtherance of common intention
- Charge under Section 302 read with Section 34 IPC may be sustained if accused was among assailants though named co-accused acquitted
