Supreme Court of India

DEEPAK RAJAKversusSTATE OF WEST BENGAL

Citation: 2007 INSC 697
Decided: 14 June 2007
Disposal: Appeal(s) allowed
Bench: ARIJIT PASAYAT

Holding

An accused who later surrenders is entitled to the benefit of acquittal of a similarly placed co‑accused, and the conviction must be set aside.

Summary

The appellant, Deepak Rajak, was convicted under Sections 302 and 201 read with Section 34 of the IPC. The co‑accused in the same case were later acquitted by the Supreme Court. The appellant sought to enjoy the benefit of that acquittal, but the State argued that he was not entitled because he had not surrendered immediately after conviction. The appellant eventually surrendered and spent more than two years in custody. The Supreme Court held that the benefit of acquittal may be extended to an accused who later surrenders, even if he initially did not, and set aside the conviction and sentence. Consequently, the appeal was allowed.

Issues considered

Whether an accused who initially did not surrender but later surrendered is entitled to the benefit of acquittal of a similarly placed co‑accused.
Whether the benefit of acquittal can be denied when the accused fails to file an appeal and does not surrender immediately after conviction.

Legislation cited

Indian Penal Code, 1860s. 120(B), s. 201, s. 302, s. 34

Subjects

benefit of acquittalco‑accusedSection 34 IPCsurrenderconvictioncriminal appealIPC 302IPC 201

Judgment

A                                 DEEPAK RAJAK                                              "'
                                           v.                                         <
                             STATE OF WEST BENGAL

                                   JUNE 14, 2007

B                  [DR. ARIJITPASAYAT ANDB.P. SINGH,JJ.]


         Penal Code, 1860-s. 302 rlw s. 34 ands. 201 r/w s. 34-Conviction             <
    under-By courts below-Co-accused acquitted by Supreme Court-
    Appellant-accused seeking benefit of acquittal of co-accused-State
c   contending that he was not entitled to the benefit as he had initially not
    surrendered-Held: Accused was entitled to the benefit of acquittal of co-
    accused, in view of the fact that he later surrendered.

           In the present appeal, appellant-accused who was convicted u/ss. 302
D   rlw.s. 34 and 201 r/w s. 34 IPC by courts below contended that he should be
    granted benefit of acquittal of the co-accused. Respondent-State distinguished
    the case of the appellant on the ground that he had initially not surrendered.    .,t
    However, appellant subsequently surrendered and suffered custody of more
    than two years.

E         Allowing the appeal, the Court

           HELD: The law of giving benefit of acquittal of similarly placed co-
    accused on the same set of facts and on similar accusations, may be departed
    in cases where the accused had not surrendered after the conviction in addition
    to not filing an appeal against the conviction. But in the present case, after
F   surrender, the benefit of acquittal in the case of co-accused on similar
    accusations can be extended. Hence conviction and sentence recorded by courts     r
    below is set aside. (Paras 5, 6 and 7] [1024-C-E[

         Raja Ram and Ors. v. State of MP. [1994] 2 SCC 568; Kashmira Singh
  v. State of Punjab, (1995) Supp 4 SCC 558; Dandu Lakshmi Reddy v. State of
G A.P., [1999) 7 SCC 69; Jayantibhai Bhenkar v. State of Gi:jarat, (2002] 8 SCC
  165; Bijoy Singh and Anr. v. State of Bihar, (20021 9 SCC 147; Gurucharan
  Kumar and Anr. v. State of Rajasthan, [2003] 2 SCC 698; Akhil Ali Jehangir
  Ali Sayyed v. State of Maharashtra, (2003] (2) SCC 708; Suresh Chaudhary,
                                                                                      -f
  v. State of Bihar 2003 (4) SCC 128; Pawan Kumar v. State of Haryana, [2003]
H                                        1022



                                                                                            "
               DEEP AK RAJ AK v. ST ATE OF WEST BENGAL (PASA YAT. J. (        I 023

    11 sec 241; Hem Raj and Anr. v. Seate of Punjab, (20031 12 sec 241; Vijrapu        A
    Sambayya Naidu v. State of A.P. 2004 (IO) SCC 152; Mohinder Singh and
    Anr. v. State of Punjab and Ors .. (2004( 1 SCC 311; Uma Shank.or Gopalik.a
    v. State of Bihar 2005 10 SCC 336 and Munno Kumar v. State of Bihar, (2005\
    12 sec 209, referred to.

            CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 1308 of B
    2001.

          From the Final Judgment and Order dated 24.5.2001 of the High Court
    of Calcutta in C.A. No. 17 of 2000.

         Sanjay R. Hedge, Anand, Ail Mishra, Abhijit Sengupta for the                  C
    Appellants.

         -. T.C. Sharma, Neelam Sharma, Rajeev Sharma, for the Respondent.

            The Judgment of the Courwt was delivered by
                                                                                       D
          DR. ARIJIT PASA Y AT, J. 1. Appellant faced trial alongwith several
    others for alleged commission of offences punishable under Section 302 read
    with Section 34, Section 201 read with Section 34 and Section 120(B) of the
    Indian Penal Code, 1860 (in short the 'IPC').

          2. The factual details need not detain us as undisputedly the co-            E
    accused have been acquitted by this Court in Mousam Singha Roy and Ors.
    v. State of WB. [2003] 12 SCC 377]. The effect of such acquittal vis-a-vis
    similarly situated co-accused has been considered by this Court in several
    cases.

           3. Learned counsel for the appellant placed reliance on various decisions   F
    of this Court contending that the benefit of acquittal should be extended to
    the appellant.

            4. Learned counsel for the State on the other hand submitted that the
      appellant did not surrender initially and therefore decisions relied upon may G
      not have any relevance. He relied on the decisions in Raja Ram & Ors. v.
      State of M.P. [1994] 2 SCC 568; Kashmira Singh v. State of Punjab [1995]
    . Supp 4 SCC 558); Dandu Lakshmi Reddy v. State of A.P. [ 1999] 7 SCC 620;
)     Jayantibhai Bhenk.ar v. State of Gujarat, [2002] SCC 165; Bijoy Singh & Anr.
      v. State of Bihar, [2002] 9 SCC 147; Gurucharan Kumar & Anr. v. State of
                                                                                       H
    1024                   SUPREME COURT REPORTS                     (2007) 7 S.C.R.

A Rajasthan, [2003] 2 SCC 698: Akhil Ali Jehangir Ali Sayyed v. State of
    Maharashtra, [2003] 2 SCC 708): Suresh Chaudhary v. State of Bihar, '[2003]
    4 SCC 128); Pawan Kumar v.State of Haryana, [2003] 11 SCC 241; Hem Raj
    & Anr. v. State of Punjab, [2003] 12 SCC 241; Vijrapu Sambayya Naidu v.
    State of A.P. (2004] IO SCC 152; Mohinder Singh & Anr. v. State of Punjab
B   and Ors., [2004] 12 sec 311; Uma Shankar Gopalika V. State of Bihar, [2005]
     IO sec 336 and Munna Kumar v. State of Bihar, [2005] 12 SCC 209. The
    appellant subsequently surrendered and has suffered custody for more than
    two years.

          5. The position in law as to what happens in case of acquittal of
C   similarly placed co-accused on the same set of facts and on similar accusations
    has been considered by this Court in several cases.

          6. A departure may be made in cases where the accused had not
    surrendered after the conviction in addition to not filing an appeal against the
    conviction. But as in the present case, after surrender, the benefit of acquittal
D   in the case of co-accused on similar accusations can be extended.

           7. The appeal is allowed and conviction and sentence as recorded by
    the trial court and upheld by the High Court is set aside.

    KKT.                                                          Appeal allowed.

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