Holding

The failure to frame a charge under Section 302 read with Section 149 IPC is not a mere irregularity; consequently, the convictions under Section 326 IPC stand and cannot be substituted, and the sentence is not enhanced.

Summary

The Sessions Court tried six accused for the murder of Vemulapalli Buddah Prasad, framing charges under Sections 148, 302 and 324 IPC. The High Court set aside the convictions under Section 302, substituting them with convictions under Section 304 Part I for one accused and Section 326 for the others, holding that no charge under Section 302 read with Section 149 had been framed. The State appealed, contending that the omission of Section 149 was a mere irregularity and that the accused should be convicted under Section 302/149. The Supreme Court held that the failure to frame a charge under Section 302 read with Section 149 was not a mere irregularity; without such a charge, the conviction cannot be substituted, and the Section 326 convictions stand. It also declined to enhance the sentence, noting the considerable lapse of time since the offence. Accordingly, the appeals were dismissed.

Issues considered

The omission of a charge under Section 302 read with Section 149 IPC – whether it is a mere irregularity that can be cured by substituting conviction.
Whether convictions under Section 326 IPC can be set aside and replaced with convictions under Section 302 read with Section 149 IPC in the absence of a specific charge.
Whether the sentence for the conviction under Section 326 IPC can be enhanced given the passage of time since the offence.

Legislation cited

Indian Penal Code, 1860s. 148, s. 149, s. 302, s. 304 Part I, s. 324, s. 326

Subjects

IPCmurderunlawful assemblycharge framingconviction substitutionsentencingcriminal appeal

Judgment

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A BALA SEETHARAMAIAH
v. y
PERIKE S. RAO AND ORS.

MARCH 16, 2004

B [K.G. BALAKRISHNAN AND B.N. SRIKRISHNA, JJ.]

Penal Code, 1862:

ss.148, 302, 324 and ss.302 read with l4Y-Six accused-Prosecuted
c for murder-Charges framed u/s.148,302 and 324-Trial court held all the
accused guilty of offences u/s.148, and 302-Besides, two of them were also ....
I!
held guilty u/s.324-High Court noticed that there was no charge framed JI
under s.3,02 read with s. 149-lt found one accused guilty under s.304 Part-
I and remaining five under s.326-Conviction under s.302 set aside-Held,
D Sessions Judge did not frame charge against accused persons for offence
punishable under s. 302 read with s. 149-Relevant prosecution allegations
so as to bring in the ingredients of the offence punishable under s. 302 read
with s. 149 also were not incorporated in the charge framed by the Sessions
Judge-Accused were not told that they had to face charge of being member
of unlawful assembly and common object of such assembly was to commit
E murder of deceased and in furtherance of that common object murder was
committed and thereby they had the constructive liability and thus they
committed offence punishable under s. 302 read withs. 149-0fcourse, mere
omission to mention s. 149 may be considered as an irregularity, but failure
to mention the nature of the offence committed by them cannot he said to be
a mere irregularity-Therefore, it is not possible to reverse con,,iction of
F
accused .under s. 326 and substitute conviction for offence punishable under
s.3021149 as there was no charge framed against them for such offence-As
regards the sentence for offence uls 326, the incident happened in 1990,
accused must have undergone the period of sentence imposed on them and at
this distance of time, it would not be just and proper to enhance the sentence
G imposed by High Court.

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
1107 of 1997.
>.-
From the Judgment and Order dated 4.10.96. of the Andhra Pradesh
H 28
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,
!

BALA SEETHARAMAIAH v. P.S. RAO 29
High Court in Crl. A. No. 107 of 1996. A
WITH

Crl. A. No. 1108 of 1997.

Mrs. K. Amareshwari, B. Ramana Reavthy, Shiv Kumar Suri, Ms. T. B
Anamika and Guntur Prabhakar for the Appellants.

Y. Raja Gopala Rao and Ms. Sasmita Tripathy for the Respondents.

The following Order of the Court was delivered :

The Sessions Court of Krishna Division at Machilipatnam at Andhra
c
Pradesh tried six accused persons alleging that they caused the death of
Vemulapalli Buddah Vara Prasad @ Buddah Prasad. The deceased Buddah
Prasad was the owner of banana garden. The prosecution allegation was that
these accused tresspassed into his property and took away some bamboo
poles used for supporting the plants. Some criminal cases were also filed D
against these accused alleging that they have committed theft of bamboo
poles. According to prosecution the accused nurtured grudge against the
deceased and on 3.11.1990, they attacked deceased Buddah Prasad and caused
his death. PW-1 and PW-2 had seen the accused committing the offence.
They went and informed the matter to the Ex. Sarpanch (P.W.3.) who prepared E
report, then PW-I and PW-2 went to the police station and gave that report
to the Sub inspector of police (PW-9). After investigation, police filed charge
sheet alleging that accused had formed themselves into an unlawful assembly
and caused the death of Buddah Prasad.

The Sessions Court framed charges against the accused on three counts. F
The first charge was under Section 148 !PC alleging that they formed
themselves into an unlawful assembly with a common object, they caused
death of Buddha Prasad and thereby committed the offence punishable under
Section 148 !PC. The second charge was under Section 302 !PC simpliciter
against each of the accused. The third charge was framed against A- I and A- G
2 for the offence punishable under Section 324 !PC for having caused injury
to Bala Seetharamaiah.

The Sessions Court found A-I to A-6 guilty of offence punishable
under Section 148 !PC and each of them was sentenced to undergo rigorous
imprisonment for a period of one year. A I to A-6 were also sentenced to H
imprisonment for life for the offence punishable under Section 302 !PC, A-
r
\

30 SUPREME COURT REPORTS [2004] 3 S.C.R.

A I and A-2 were also punished under Section 324 IPC and each of them to
suffer rigorous imprisonment for one year.

Aggrieved by these convictions and sentences, the accused preferred an
appeal before the High Court of Andhra Pradesh at Hyderabad. The Division
Bench of the High Court noticed that as regards accused A-1 to A-6, there
B was no charge framed under Section 302 read with Section 169 !PC and the
High Court held that A-2 the second accused was guilty for the offence under
Section 304 Part-I !PC and he was sentenced to 7 years imprisonment and
his conviction under Section 302 IPC was set aside. The conviction of accused
A-1, A-3 to A-6 under Section 302 was set aside and instead they were
C sentenced to undergo imprisonment for two years each under Section 326
!PC. Aggrieved by the judgment of the High Court these two criminal appeals
are filed one by the State and other by the de facto complainant (PW-I).

Heard Mrs. K. Amreshwari, learned senior counsel for the appellant,
Ms. T. Anamika, learned counsel for the State and Mr. Y. Rajagopala Rao,
D learned counsel for the respondents.

Learned senior counsel for the appellant appearing in Criminal Appeal
No. 1107/1997 submitted that in the face of clear evidence given by eye
witnesses the acquittal of the accused of the offence punishable under Section
302 !PC was unsustainable, and the High Court seriously erred in not convicting
E them for the offence of murder. The counsel submitted that even though
specific charge was not framed against these accused persons under Sections
302 !PC read with Section 149 !PC it is only an irregularity and the accused
were not prejudiced by such non filing of the charge and the High Court
shoul_d have convicted these accused persons under Section 302/149 !PC in
F view of over all evidence adduced by the prosecution. It is true that PW-I
and PW-2 gave a detailed evidence as to the manner in which the incident
happened. The Sessions Judge as well as the Division Bench accepted the
evidence of PW-I and PW-2 who gave evidence to the effect that Buddah
Prasad wits chased and dragged by these accused persons and caused various
G injuries to his body, and the counsel contended that all the accused persons
should have been convicted under Section 302/149 !PC as the common object
of the unlawful assembly was clearly spelt out from the prosecution evidence
adduced in this case.

We have carefully considered the evidence and relevant record in this
H case. The second charge framed against the accused persons was to the
following effect;
BALA SEETHARAMAIAH v. P.S. RAO 31
"That you on the same day and at the same time and place did commit A
murder by intentionally causing the death ofVemulapalli Buddah Veraprasad
@ Buddah Prasad by beating him with Paneka Kathulu and thereby committed
an offence punishable under Section 302 of LP.C. and within my cognizance."

Unfortunately, the Sessions Judge did not frame charge against the
accused persons for offence punishable under Section 302 !PC read with B
Section 149 !PC. It is also important to note that the relevant prosecution
_allegations so_as to bring in the ingredients of the offence punishable under
Section 302 !PC read with Section 149 !PC also were not incorporated in the
. 1""
charge framed by the Sessions Judge. The accused were not told that they
had to face charge of being member of the unlawful assembly and the common C
object of such assembly was to commit murder of the deceased and in
furtherance of that common object murder was committed and thereby they
had the constructive liability and thus they committed the offence punishable
under Section 302 !PC read with Section 149 lPC. Of course the mere omission
to mention Section 149 may be considered as an irregularity, but failure to
mention the nature of the offence committed by them cannot be said to be D
a mere irregularity. Had this mistake been noticed at the trial stage, the
Sessions Judge could have corrected the charge at any time before the delivery
of the Judgment. In the instant case, the accused were told to face a charge
punishable under Section 302 simplicitor and there was no charge under
Section 302 !PC read with Section 149 !PC. Therefore, it is not possible to E
reverse the conviction of the accused under Section 326 !PC and substitute
the conviction for the offence punishable under Section 302/149 IPC as there
was no charge framed against them for such offence.

The counsel for the appellant further submitted that A-1, A-3 to A-6
were found guilty of offence punishable under Section 326 !PC in view of F
the various overt acts committed by them and the sentence was only for a
period of two years, they should have been sentenced to imprisonment for
longer period. The incident happened in 1990 and the appeal by the High
Court was disposed of in 1996 and these accused must have undergone the
period of sentence already imposed on them. First accused is said to have
died recently. At this distance of time, we do not think just and proper to G
enhance the sentence imposed by the High Court. The appeals are therefore,
disposed of accordingly.

R.P. Appeals disposed of.

H

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