Mohan Singh vs State of Punjab

T.H.B. Chalapathi, J.

The appellant was convicted under Section 304, PartII I.P.C. and sentenced to undergo rigorous imprisonment for a period of 7 years and to pay a fine of Rs. 1,000/.

Originally a charge under Section 302 I.P.C. was framed against the appellant on the ground that he committed the murder of one Dyal Chand. The learned Sessions Judge, Hoshiarpur, came to the conclusion that the appellant was not guilty of the offence under Section 302 I.P.C. and found him guilty of the offence under Section 304 PartII I.P.C. and convicted and sentenced him as stated above.

Aggrieved by the said conviction and sentence, the appellant preferred the above appeal. The State has not filed any appeal against the acquittal of the appellant for the offence under Section 302 I.P.C. as the appellant was convicted under Section 304 PartII I.P.C. The appeal was placed before the learned Single Judge in accordance with High Court Rules and JUDGMENTs. The learned Judge was prima facie of the opinion that the judgment under appeal is erroneous and the appellant ought to have convicted under Section 302 I.P.C. and, accordingly, directed the matter to be placed before a Division Bench. Thus the matter has come up before us.

We requested Mr. R.S. Cheema, Senior Advocate to assist us in this matter.

After hearing the arguments of Shri R.S. Cheema, Senior Advocate, and the learned Counsel for the appellant and the learned Deputy Advocate General, Punjab, we are of the opinion that the High Court in an appeal filed by the accused against his conviction for the lesser offence cannot convert the conviction into one for graver offence and sentence him. The appeal is filed under Section 386 Cr.P.C. The question whether in an appeal filed by the accused, the High Court can alter the conviction from Section 304 PartI to Section 302 I.P.C. has been considered in catena of decisions including that of the Supreme Court.

In Jangir Singh Deva Singh and others v. The State, this Court observed as follows :

"Where accused persons are tried by a Sessions Court on charge of murder committed in furtherance of common intention, and the Sessions Court acquits the accused of the charge and convicts them only of an offence under Section 304 PartI read with Section 34 I.P.C. and the accused person appeals to the High Court against the conviction and sentence, but the State Government does not appeal against the acquittal of the accused on charge of murder, it is not open to the High Court under Section 423(1)(b) or Section 439(4) Cr.P.C. on a revision filed by the complainant for enhancement of punishment, to set aside the conviction and sentence under Section 304 Part I read with Section 34 I.P.C. and to convict and sentence them for murder under Section 302 read with Section 34 I.P.C."

For the above proposition, this Court placed reliance on the decisions of the Privy Council in Kishan Singh v. Emperor, AIR 1928 PC 254 and State of Andhra Pradesh v. Narayana (AIR 1962 S.C. 240 wherein the view taken by the Full Bench of the Andhra Pradesh High Court was confirmed).

In Lakhan Mahto and others v. State of Bihar, AIR 1966 SC 1742, the apex Court held that in exercise of the powers conferred by Section 423(1)(b) Cr.P.C. which is clearly confined to appeals against the convictions, High Court could not, in the absence of appeal by the State against the acquittal, convert the order of acquittal into one of conviction.

Dealing with the powers of the Supreme Court in an appeal filed by the accused to alter the conviction, the Apex Court in E.K. Chandrasenan v. The State of Kerala, JT 1995 (1) S.C. 496 held as follows :

"Let it first be seen whether the conviction as awarded by the High Court is sustainable. To decide this, what we shall have to primarily see is whether the five accused before us had acted in concert in committing the offences for which they have been held guilty by the High Court. Before examining this aspect, it may be stated as the High Court also had not convicted any of the appellants under Section 302, we are not addressing ourselves, as it is not open to do so, to the question whether the appellants were guilty under Section 302. We, therefore, propose to confine our discussion to the conviction as awarded by the High Court." (emphasis added).

Thus, it is clear from the authorities referred to above, the High Court in an appeal filed by the convict, cannot convert the conviction for lesser offence into a graver offence in the absence of an appeal by the State. We are, therefore, of the opinion that the order of the learned Single Judge referring the matter to a Division Bench for the purpose of converting the conviction under Section 304 PartII I.P.C. to one under Section 302 I.P.C. cannot be sustained. We express our gratitude to Shri R.S. Cheema, Senior Advocate, for his able assistance.

We, therefore, remit the matter back to the learned Single Judge to decide the case on merits.

JUDGMENT accordingly.