Aziz Vs. State of Rajasthan  Insc 505 (3 May 2007)
S. H. Kapadia & B. Sudershan Reddy
CRIMINAL APPEAL NO. 665 OF 2007 (Arising out of S.L.P. (Crl.) No.4083 of
2006) KAPADIA, J.
(1) Leave granted.
(2) This criminal appeal by grant of special leave is directed against
impugned judgment dated 13.1.06 delivered by the Rajasthan High Court, Jaipur
Bench, in D.B. Criminal Appeal No.513/04 converting the conviction under
Section 460 IPC imposed by Additional District and Sessions Judge, Jaipur, in Session
Case No.49/2001 into conviction under Section 302 IPC, without the State filing
appeal in that regard, on the ground that the trial court had on account of
inadvertence convicted the appellant only under Section 460 IPC.
(3) This judgment is a sequel to our judgment in the case of Raju @ Raj
Kumar v. State of Rajasthan - Criminal Appeal No. of 2007 arising out of S.L.P.
(Crl.) No.4446 of 2006, pronounced today. Therefore, we are not required to
restate the case of the prosecution.
Suffice it to state that Abdul Aziz (appellant herein) was accused No.1. He
was convicted by the trial court under Section 460 IPC. We have extensively
quoted the relevant paragraphs of the operative part of the judgment of the
trial court in the earlier judgment. On the merits of the case, we find no
infirmity with the concurrent findings recorded by the courts below. The
evidence of Uttam Prakash (pw.4), who was present at the time when his father
was attacked by 10 to 12 persons with knives, was the eye-witness. He had seen
the appellant entering the room where the deceased was in conversation with
pw.4's aunt. Appellant was named in the FIR. That, evidence of pw.4 is
supported by recovery and medical evidence.
(4) Under Section 460 IPC constructive liability is imposed on persons
jointly concerned in committing house trespass at night, in the course of which
death or grievous hurt is caused. The section applies to persons who actually
committed house trespass at night and the act of causing death or grievous hurt
by any one of the intruders would make others, who did not cause the injury,
equally liable. In the present case, the ingredients of Section 460 IPC are
complied with. However, it is contended on behalf of the State that on reading
the judgment of the trial court it is clear that the trial court has found
Abdul Aziz (appellant herein) guilty of murder and he was liable to be
convicted under Section 302 IPC.
This point was argued by the State before the High Court in the criminal
appeal filed by the appellant herein. It has been held, in the impugned
judgment delivered by the High Court, that the trial court had instead of
convicting Abdul Aziz (appellant herein) for offence under Section 302 IPC had
inadvertently convicted and sentenced him for offence under Section 460 IPC and
that considering the evidence on record, the appellant herein was liable to be
convicted for an offence under Section 302/149 IPC.
(5) In the present case, we find that the appellant was charged under
Section 302, 148, 149 and 460 IPC but the trial court had convicted him only
under Section 460 IPC and sentenced to ten years imprisonment. No appeal was
filed by the State for enhancement or for conviction under Section 302 IPC and
yet in the appeal filed by the appellant the High Court has convicted him under
Section 302/149 IPC and sentenced him to life imprisonment.
(6) In the case of Jagdeo v. State of Uttar Pradesh 1953 (51) Allahabad Law
Journal 501, a similar situation arose for determination. In that case Jagdeo
had moved the High Court in appeal against his conviction under Section 460
IPC. However, the High Court had issued the notice to show cause why the
sentence passed against Jagdeo be not enhanced. There is no such notice in this
case. In that case Srimati Lalji was found murdered, her ornaments were removed
and the appellant (Jagdeo) was convicted under Section 460 and sentenced to 5
years rigorous imprisonment. It was held that if what was alleged against the
accused was correct then an offence under Section 302 IPC was made out and in
such an event the offence would not come under Section 460 IPC. We quote hereinbelow
the relevant portion of the said judgment which reads as under:
"On the facts of this particular case, the provisions of Section 460
are not applicable for another reason. It is not disputed that Section 460, I.
P. C. will not apply to the case of a single individual who alone commits
lurking house trespass and during such commission causes or attempts to cause
death or grievous hurt to any person, and there is very little evidence led
about others joining the accused in the commission of this offence.
There may arise a case in which several persons commit lurking
house-trespass and someone among them causes or attempts to cause death or
grievous hurt. In such a case it cannot be said that any particular person
committed those acts and it might be possible, as held in -- 'Mohammada v.
Emperor', AIR 1936 Lah 911 (B), that all of them be liable to conviction under
Section 460, I. P. C.
Of the cases referred to, the actual person, who while committing lurking
house- trespass also caused or attempted to cause death or grievous hurt, was
convicted in -- 'Queen v. Lukhun Doss, (1865) 2 WR Crl. 52 (A)' and in -- 'Faiz
Bakhsh v. Emperor', 48 Cr.L.J. 269, without any discussion as to whether his
case really came within that section or not. In the case reported in -- 'Queen
- Empress v. Ismail Khan', ILR 8 All 649 (D) an observation has been made
without any discussion to the effect:
"Sections 459 and 460 provide for a compound offence, the governing
incident of which is that either 'a lurking house- trespass' or
'house-breaking' must have been completed, in order to make a person who
accompanies that offence either by causing grievous hurt or attempt to cause
death or grievous hurt responsible under those sections."
It was actually decided in that case that the accused had not committed
lurking house- trespass or house-breaking and, therefore, their conviction
under Sections 459 and 460, I.
P. C. could not be maintained.
The case reported in 'Chatur v. King Emperor', 8 All LJ 574 (E) is very
apposite to the present case. One person had entered a house, attempted to rob
a girl of a 'hansli' and stabbed her father to death when he seized the thief.
He was convicted by the sessions court of an offence under Section 460, I. P.
C. and was sentenced to transportation for life. On appeal his conviction was
altered to Section 302, I. P. C., and in the exercise of revisional
jurisdiction the sentence of transportation for life was enhanced to a sentence
Richards, J., who delivered the judgment - observed while interpreting
Section 460, I. P.
"In our opinion this section was intended to provide for the punishment
of persons who are jointly concerned in the committing of the house-trespass or
house-breaking altogether irrespective whether they were the persons who caused
or attempted to cause death or grievous hurt."
This may be interpreted to mean that Section 460 provided for the punishment
of the person who actually caused or attempted to cause death or grievous hurt
while committing lurking house-trespass or house-breaking.
But the observation just following the aforesaid quoted remarks makes it
clear that the section would apply to the associates of such actual offender.
We cannot now alter the conviction of the appellant to Section 302, I. P.
C., and enhance sentence in the exercise of revisional jurisdiction, in case we
come to the conclusion on hearing full arguments that the appellant did murder
her in view of the Full Bench decision in -- 'Taj Khan v. Rex', AIR 1952 All
369 (FB) (F)." (emphasis supplied) (7) In re Singaram and another AIR
1954 Madras 152, the case was concerning murder and robbery. The accused were
charged and tried for offences under Section 302/34 IPC. The trial court
convicted them under Section 460 IPC and, therefore, the State filed an appeal
questioning the correctness of acquittal under Section 302/34 IPC. It was held
in that case that the trial court had wrongly convicted the accused under
Section 460 IPC; that their acquittal by the trial court under Section 302/34
IPC was erroneous and accordingly each of the appellants was sentenced for life
imprisonment. The sentence of seven years imposed by the trial court for
offence under Section 460 IPC was set aside. However, it is important to note
that in the said case appeals were filed by the State and it is in those
appeals that the accused were convicted under Section 302/34 IPC and sentenced
to life imprisonment. In the present case, there is no such an appeal. In the
present case, appeal has been filed before the High Court by Abdul Aziz
(appellant herein) and not by the State.
Before us appeal has been filed by Abdul Aziz. In the circumstances, the
High Court was wrong in convicting Abdul Aziz for an offence under Section 302
IPC when the trial court had convicted him under Section 460 IPC, particularly,
in the absence of any appeal from the State.
(8) In the case of Sohan Singh Kesar Singh v. State of Punjab AIR 1964 Punjab
130, Sohan Singh was convicted under Sections 302, 380 and 457 IPC; he was
sentenced to death under Section 302 IPC and to rigorous imprisonment for three
years under each of the Sections 457 and 380 IPC. Sohan Singh preferred an
appeal against his conviction and sentence. One of the arguments advanced on
behalf of Sohan Singh was that the offence in question fell within the purview
of Section 460 IPC and not under Section 302 IPC. It was argued that while
committing the offence of house-breaking by night death of the child was caused
and, therefore, the accused could be punished only under Section 460 IPC.
It was in the context of this argument that the High Court held as follows:
"Section 460 merely provides for constructive liability of persons
committing or corcerned in, 'inter alia' house-breaking by night in the course
of which death is caused by one of the offenders and it prescribes enhanced
penalty for the joint offenders. To attract this section it matters little as
to who actually causes the death, for, everyone jointly concerned in committing
the house-breaking is liable to the enhanced penalty under this section if
death is caused in the course of the offence, no matter who is really
responsible for the death. It does not, as indeed it cannot, be considered to
serve as an exception to Section 302, Indian Penal Code. If a person committing
house-breaking by night also actually commits murder he must attract the
penalty for this latter offence under Section 302 and I find it almost
impossible to hold that he can escape the punishment provided for murder merely
because the murder was committed by him while he was committing the offence of
house- breaking, and that he can only be dealt with under Section 460. Neither
the language of Section 460 nor the scheme of Indian Penal Code nor logic and
common sense would seem to support this contention which I unhesitatingly
(9) The above judgment has no application to the point in issue. In that
case, Sohan Singh was convicted under Section 302. He was sentenced to death.
If a person commits house-breaking by night and also commits murder, his act
attracts Section 302 IPC. There is no dispute about the said proposition.
However, in the present case, the appellant was charged under Sections 302, 460
and 149 IPC. He was not convicted under Section 302 IPC. He was not convicted
under Section 302/149 IPC. He was convicted only under Section 460.
No appeal was filed by the State for convicting him under Section 302 IPC.
No appeal was filed by the State for convicting him under Section 302/149 IPC.
The High Court has convicted Abdul Aziz (appellant herein) under Section
302/149 IPC in his own appeal by substituting the conviction and sentence. No
prior notice for enhancement was issued by the High Court. In our view, this
cannot be done. In our view this would amount to travesty of justice. It is
only in the impugned judgment that High Court observed that through
inadvertence the trial court had failed to invoke Section 302/149 IPC.
(10) For the aforestated reasons, we hold that Abdul Aziz (appellant herein)
stands convicted under Section 460 IPC and he will serve the sentence of
rigorous imprisonment for ten years and pay the fine as ordered by Additional
District and Sessions Judge, No.1 (Fast Track) Jaipur City, Jaipur, in Session
Case No.49/2001 decided on 9.3.2004.
(11) Consequently, the sentence of life imprisonment, imposed by the
impugned judgment of the High Court, shall stand substituted by the sentence of
rigorous imprisonment for ten years and fine of Rs.500/- (in default, three
months sentence) as imposed by the trial court vide its judgment dated 9.3.2004
in Session Case NO.49/2001.
(12) Accordingly, the appeal is partly allowed.
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