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In the case Mala Singh vs. State of Haryana, the Apex Court has observed that when a the accused is
convicted and such conviction is modified from Section 149, Indian Penal Code to Section 34 of the
same Code, their “common intention” must be proved.
In the case, 11 accused persons were convicted by the Trial Court for murder of a lady. The accused
filed an appeal in the High Court. A total of 8 accused were acquitted from all the charges. The appeal
was dismissed in regards to the 3 persons and their conviction was upheld by taking a recourse to
Section 34, Indian Penal Code.
The following issues were addressed in a further appeal to Supreme Court:
1. Whether the High Court was justified in convicting the appellants under Section 302 read with
Section 34 IPC when, in fact, the initial trial was on the basis of a charge under Section 302 read
with Section 149 IPC
2. whether the High Court was justified in altering the charge under Section 149 to one under
Section 34 in relation to three accused (appellants herein) after acquitting eight co-accused from
the charges of Section 302/149 IPC and then convicting the three accused (appellants herein) on
the altered charges under Section 302/34 IPC?
3. Whether there is any evidence to sustain the charge under Section 34 IPC against the three
accused (appellants herein) so as to convict them for an offence under Section 302 IPC?
4. In case the charge under Section 34 IPC is held not made out for want of evidence and further
when the charge under Section 149 is already held not made out by the High Court, whether any
case against three accused persons (appellants herein) is made out for their conviction and, if so,
for which offence ?
On an examination of the evidence on record, the Bench disregarded the Hiogh Court’s decision and
said that the conviction under Section 302/34 IPC is not legally sustainable in the absence of any
evidence of common intention qua the three accused. The bench said:
"When prosecution did not set up such case at any stage of the proceedings against the
appellants nor adduced any evidence against the appellants that they (three) prior to date of the
incident had at any point of time shared the "common intention" and in furtherance of sharing
such common intention came on the spot to eliminate Mahendro Bai and lastly, the High Court
having failed to give any reasons in support of altered conviction except saying in one line that
conviction is upheld under Section 302/34 IPC in place of Section 302/149 IPC, the invoking of
Section 34 IPC at the appellate stage by the High Court, in our view, cannot be upheld."
the appeal was consequently disposed with a very long sentence which is:
"In a case of this nature, when there is a fight between the two groups and where there are gun
shots exchanged between the two groups against each other and when on evidence eight co-
accused are completely let of and where the State does not pursue their plea of Section 149 IPC
against the acquitted eight accused which attains finality and where the plea of Section 34 IPC is
not framed against any accused and where even at the appellate stage no evidence is relied on
by the prosecution to sustain the charge of Section 34 IPC qua the three accused appellants
independent of eight acquitted co-accused and when out of two main accused assailants, one
has died and the other is acquitted and lastly, in the absence of any reasoning given by the High
Court for sustaining the conviction of the three appellants in support of alteration of the charge,
we are of the considered view that the two appellants are entitled to claim the benefit of entire
scenario and seek alteration of their conviction for commission of the offence punishable under
Section 324 IPC simplicitor rather than to suffer conviction under Section 302/34 IPC, if not
complete acquittal alike other eight co-accused."Tagged: Section 149 Section 34 Common Intention Common Object Supreme Court
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