2, 9, 11, 12, and 16 for the offence punishable under Section 302, read with sections 148 and 149 and Section 201 of IPC. According to the prosecution case, on 2 June 1987, Vinod Kumar had taken his brother Munau to village Naugaon by scooter for medical treatment. As they did not return till 5 pm, Uma Prasad Khare (deceased), who was the father of Vinod Kumar Khare and Munau, deputed Naval Kishore (PW-1) and Manua Chammer (PW-2) to search his sons. Further allegation of the prosecution is that after committing the murder of Uma Prasad, all the accused went towards the bus stand with the intention of killing Vinod Kumar Khare and Munau Khare. 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. 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. The order sheet of the appeal preferred by the appellant and two others (Annexure P-3) records that on 26 October 2004, when the appeal preferred by the appellant and two others was called out, the appellant’s advocate was present. The High Court has, thus, committed illegality by deciding the appeal against the conviction preferred by the appellant without hearing the appellant or his advocate. Only if the accused is put to notice by the Appellate Court that the charge is intended to be altered in a particular manner, his advocate can effectively argue that even the altered charge was also not proved. Therefore, there was no occasion for the High Court to put the advocate for the appellant to the notice that the charge under Section 302 read with Sections 148 and/or 149 of IPC was proposed to be altered to a charge under Section 302 read with Section 34 of IPC. 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. State of Rajasthan, this Court dealt with the conversion of charge from Section 302 read with Section 149 of IPC, to Section 302, read with Section 34 of IPC. Thus, if several persons numbering five or more, do an act and intend to do it, both Section 34 and Section 149 may apply.
Hence, the appeal partly succeeds. We set aside the appellant’s conviction for the offence punishable under Section 302, read with Section 34 of IPC. However, the appellant’s conviction for the offence punishable under Section 201 of IPC is confirmed. The appellant has already undergone the sentence for the said offence. Therefore, the bail bonds of the appellant stand cancelled. The appeal is allowed on the above terms.
Case Title: Chandra Pratap Singh Vs. State of M.P
Case Number: CRIMINAL APPEAL NO. 1209 OF 2011 (2023INSC887)
