Whether the court can convict accused U/S 302 R/W S 34 of IPC if he was charged U/S 302 R/W S 149 of IPC?

 Be that as it may, the determination of common intention or common object should primarily be within the domain of the trial courts, and at the most the high courts. It should not be the role of this Court to directly adjudicate issues of common intention and common object. This Court has, in a catena of decisions, elaborated on the differences between Section 149 and Section 34, Indian Penal Code; the overlapping nature of Section 149 and Section 34, Indian Penal Code; and when can the offence Under Section 302 read with Section 149, Indian Penal Code be changed to Section 302 read with Section 34, Indian Penal Code. Such decisions do provide suitable guidance for the lower courts to draw from, to reach their conclusions. {Para 21}

22. In this connection, we may refer to paragraph 14 of the decision of this Court in Chittarmal v. State of Rajasthan   MANU/SC/0008/2003 : 2003:INSC:5 : (2003) 2 SCC 266. The relevant excerpt from such decision reads:

14. It is well settled by a catena of decisions that Section 34 as well as Section 149 deal with liability for constructive criminality i.e. vicarious liability of a person for acts of others. Both the Sections deal with combinations of persons who become punishable as sharers in an offence. Thus, they have a certain resemblance and may to some extent overlap. But a clear distinction is made out between common intention and common object in that common intention denotes action concert and necessarily postulates the existence of a prearranged plan implying a prior meeting of the minds, while common object does not necessarily require proof of prior meeting of minds or preconcert. Though there is a substantial difference between the two sections, they also to some extent overlap and it is a question to be determined on the facts of each case whether the charge Under Section 149 overlaps the ground covered by Section 34. Thus, if several persons numbering five or more, do an act and intend to do it, both Section 34 and Section 149 may apply. If the common object does not necessarily involve a common intention, then the substitution of Section 34 for Section 149 might result in prejudice to the Accused and ought 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 non-applicability of Section 149 is, therefore, no bar in convicting the Appellants Under Section 302 read with Section 34 Indian Penal Code, if the evidence discloses commission of an offence in furtherance of the common intention of them all. 

23. In paragraph 17 of the decision of this Court in Chandra Pratap Singh v. State of M.P.   MANU/SC/1100/2023 : 2023:INSC:887 : (2023) 10 SCC 181, while dealing with conversion of charge from Section 302 read with Section 149, Indian Penal Code to Section 302 read with Section 34 thereof, the above passage has been quoted with approval.

24. It would be relevant at this juncture to consider Section 464 of the Code of Criminal Procedure. On its plain terms, Sub-section (1) of Section 464 clearly indicates that no finding, sentence or order by a court of competent jurisdiction shall be deemed invalid merely on the ground that no charge was framed or on the ground of any error, omission or irregularity in the charge including any misjoinder of charges, unless, in an appeal, confirmation or revision, a claim of "failure of justice" has been substantiated.

 IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 1389 of 2012

Decided On: 25.09.2024

Baljinder Singh and Ors. Vs. State of Punjab

Hon'ble Judges/Coram:

Dipankar Datta and Augustine George Masih, JJ.

Author: Dipankar Datta, J.

Citation: MANU/SC/1063/2024.

Read full Judgment here: Click here.

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