TMI Blog2023 (10) TMI 719X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The role ascribed to accused nos.2 and 16 is that they stopped Uma Prasad. As a result, he fell off his bicycle. According to the prosecution case, accused nos. 3, 5 and 7 (acquitted) exhorted the other accused to chop Uma Prasad into pieces. Accused nos. 7, 9 and 11 (acquitted) pointed their guns at PW1 Naval Kishore and PW2 Manua and told them not to interfere. The act of assaulting and killing Uma Prasad was allegedly done by accused no.1 and accused no.14. 4. Another allegation against the appellant is that as per suggestion of acquitted accused no.6, he, along with accused no.1, dragged the body of deceased Uma Prasad and threw the same into a well. 5. 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. It is alleged that after about 15 minutes, the sound of two gun fires was heard, and it is alleged that Vinod Kumar Khare and Munau Khare were killed. As far as the allegation of killing these two persons is concerned, the Trial Court acquitted all the accused, and that part of the judgment of the Trial Court has become final. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rosecution witnesses. He submitted that in an appeal against conviction, under Section 386 of the Code of Criminal Procedure, 1973 (for short Cr.PC ) read with Section 216 of Cr.PC, the Appellate Court, has the power to alter or add the charge when no prejudice is shown to the accused. He submitted that there was enough evidence on record to prove the ingredients of Section 34 of IPC. He invited our attention to the gravity of the offence and submitted that no interference is called for. CONSIDERATION OF SUBMISSIONS 11. The first issue is whether any prejudice was caused to the appellant, as his appeal was heard in the absence of his advocate. The cause title of the judgment clearly mentions that the advocate representing the appellant was absent. The order sheet of the appeal preferred by the appellant and two others (Annexure P3) records that on 26th October 2004, when the appeal preferred by the appellant and two others was called out, the appellant s advocate was present. The appeal was heard on 23rd November 2004. The order sheet of that date records that the advocate for the appellant was absent. It also notes that the arguments were heard, and judgment was reserv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at there was no evidence on record to prove the existence of common intention, which is the necessary ingredient of Section 34 of IPC. There is one more crucial aspect of the case. A perusal of the impugned judgment shows that the High Court has extensively referred to the evidence of PW1 Nand Kishore and PW2 Manua. However, the entire judgment does not mention that the Court was altering the charge for the reasons recorded. No finding is recorded in terms of subsection (4) of Section 216 of Cr.PC that the proposed alteration of the charge will not prejudice the accused in his defence. 14. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ght not, therefore, to be permitted. But if it does involve a common intention then the substitution of Section 34 for Section 149 must be held to be a formal matter. Whether such recourse can be had or not must depend on the facts of each case. The nonapplicability of Section 149 is, therefore, no bar in convicting the appellants under Section 302 read with Section 34 IPC, if the evidence discloses commission of an offence in furtherance of the common intention of them all. (See Barendra Kumar Ghosh v. King Emperor [AIR 1925 PC 1 : 26 Cri LJ 431], Mannam Venkatadari v. State of A.P. [(1971) 3 SCC 254: 1971 SCC (Cri) 479 : AIR 1971 SC 1467] , Nethala Pothuraju v. State of A.P. [(1992) 1 SCC 49: 1992 SCC (Cri) 20: AIR 1991 SC 2214] and Ram Tahal v. State of U.P. [(1972) 1 SCC 136: 1972 SCC (Cri) 80: AIR 1972 SC 254]) (Emphasis added) 18. We have carefully perused the evidence of PW1 and PW2. There is no evidence of the presence of common intention. Only the act of stopping the deceased Uma Prasad will not, by itself, bring the case within the purview of Section 34 of IPC. There is no overt act attributed to the appellant by any prosecution witness in the assault on decea ..... X X X X Extracts X X X X X X X X Extracts X X X X
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