Home Case Index All Cases Indian Laws Indian Laws + SC Indian Laws - 2023 (10) TMI SC This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2023 (10) TMI 719 - SUPREME COURTAssault - Triple-murder - acquittal of the accused - acquittal of accused. Whether any prejudice was caused to the appellant, as his appeal was heard in the absence of his advocate? - HELD THAT:- 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. After finding that the advocate appointed by the appellant was absent, the High Court ought to have appointed a lawyer to espouse his cause. In view of the wide powers conferred by Section 386 of Cr.PC, even an Appellate Court can exercise the power under Section 216 of altering or adding the charge. However, if the Appellate Court intends to do so, elementary principles of natural justice require the Appellate Court to put the accused to the notice of the charge proposed to be altered or added when prejudice is likely to be caused to the accused by alteration or addition of charges. Unless the accused was put to notice that the Appellate Court intends to alter or add a charge in a particular manner, his advocate cannot effectively argue the case - the Court can grant a short time to the advocates for both sides to prepare themselves for addressing the Court on the altered or added charge. There is no reason recorded in the impugned judgment to show that Section 34 of IPC was applicable. There is no discussion on this aspect in the judgment. 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. As stated earlier, there is a complete absence of any reason for concluding that Section 34 of IPC was attracted. The High Court has not recorded a finding that there was sufficient evidence to prove that the four accused who were ultimately convicted had done the criminal act in furtherance of a common intention. There is no material to prove the existence of common intention which is the necessary ingredient of Section 34 of IPC. In this case, there is no overlap between a common object and a common intention. Therefore, the conviction of the appellant under Section 302, read with Section 34 will have to be 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. Appeal allowed partly.
|