# LAKHAN MAHTO & ORS v. STATE OF BIHAR

- **Citation:** [1966] 3 S.C.R. 643
- **Court:** Supreme Court of India
- **Decided:** 1966-02-24
- **Case number:** Criminal Appeal No. 214 of 1963
- **Bench:** K. SUBBA RAo, V. RA.MAsWAMI
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/lakhan-mahto-ors-v-state-of-bihar-3641
- **Pages:** 6

## Headnote

Code of Criminal Procedure
(Act 5 oJ
1898), s.
423-Appial
azainst conviction,
no appeal again.rt
acquittal-Power of
Ap~llate
Court.
Indian Penal Code, 1860
(Act 45 of 1860), s.
149-Substantive
offence, if.
The trial court acquitted L, one of the appellantls of the charge under
s. 302 I.P.C. but convicted him and the other appellants under s. 149
I.P.C. and ss. 302/ 149 I.P.C. 'The State Government did not prefer an
appeal to the High Court against the acquittal of L under s. 302 but on
appeal preferred by L against his conviction, the High Court altered the
conviction from s. 302/ 149 to a minor offence under s. 326 and maintained the sentence of life imprisonment imposed upon him. In appeal
to this Court :
HELD : The High Court acted without jurisdiction in altering the
finding of acquittal of L on the charge under s. 302 I.P .C. and convicting him on the charge under s. 326 I.P.C. and imposing a sentence of
imprisonment on that charge.
If an order of conviction is challenged by the convicted person but
the order of acquittal is not challenged by the State then it is only the
O<"dCf' of conviction that falls to be considered by the Appellate Court
and not the order of acquittal. In exercising tho powers conferred by
s. 423(1) (b) of Code of Criminal Procedure the High Court could not
convert the order of the acquittal into one of conviction and that result
can be achieved only by adopting procedure prescribed under s. 439 of
the Criminal Procedure Code.
[647 D-FJ
State of Andhra Pradesh v. Thadi N<JTayana, A.I.R. 1962 S. C. 240.
applied.
The High Court erred in taking the view that s. 149 I.P.C. did not
constitute a substantive offence and that it was only an enabling
oection for imposition of vicarious liability and that the conviction on vicarious liability could, therefore, be altered by the appellate
court to conviction for direct liability even though there wa• an acquittal by the trial court of the direct liability for the offence. There is a
legal distinction between a charge under s. 302 I.P.C. and a charge of
constructive liability under s. 302/ 149, I.P.C., i.e., being a member of an
unlawful assembly, the common object of which was to kill a person.
[647 G, HJ
Barendra Kumar Ghosh v. Emperor, I.L.R. 52 Cal. 197, Queen v.
$abid Ali and Ors. [1873] 20 W.R. (Cr.) 5 Nanak Chand'"· State of Pu,..
;ah, [1955] 1 S.C.R. 1201 and Suraj Pal v. State of Uttar Pradesh, [1955]
1 S.C.R. 1332, referred to.

## Text

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LAKHAN MAHTO & ORS.
v.
STATE OF BIHAR
February 24, 1966
(K. SUBBA RAo AND V. RA.MAsWAMI, JJ.]
Code of Criminal Procedure
(Act 5 oJ
1898), s.
423-Appial
azainst conviction,
no appeal again.rt
acquittal-Power of
Ap~llate
Court.
Indian Penal Code, 1860
(Act 45 of 1860), s.
149-Substantive
offence, if.
The trial court acquitted L, one of the appellantls of the charge under
s. 302 I.P.C. but convicted him and the other appellants under s. 149
I.P.C. and ss. 302/ 149 I.P.C. 'The State Government did not prefer an
appeal to the High Court against the acquittal of L under s. 302 but on
appeal preferred by L against his conviction, the High Court altered the
conviction from s. 302/ 149 to a minor offence under s. 326 and maintained the sentence of life imprisonment imposed upon him. In appeal
to this Court :
HELD : The High Court acted without jurisdiction in altering the
finding of acquittal of L on the charge under s. 302 I.P .C. and convicting him on the charge under s. 326 I.P.C. and imposing a sentence of
imprisonment on that charge.
If an order of conviction is challenged by the convicted person but
the order of acquittal is not challenged by the State then it is only the
O<"dCf' of conviction that falls to be considered by the Appellate Court
and not the order of acquittal. In exercising tho powers conferred by
s. 423(1) (b) of Code of Criminal Procedure the High Court could not
convert the order of the acquittal into one of conviction and that result
can be achieved only by adopting procedure prescribed under s. 439 of
the Criminal Procedure Code.
[647 D-FJ
State of Andhra Pradesh v. Thadi N<JTayana, A.I.R. 1962 S. C. 240.
applied.
The High Court erred in taking the view that s. 149 I.P.C. did not
constitute a substantive offence and that it was only an enabling
oection for imposition of vicarious liability and that the conviction on vicarious liability could, therefore, be altered by the appellate
court to conviction for direct liability even though there wa• an acquittal by the trial court of the direct liability for the offence. There is a
legal distinction between a charge under s. 302 I.P.C. and a charge of
constructive liability under s. 302/ 149, I.P.C., i.e., being a member of an
unlawful assembly, the common object of which was to kill a person.
[647 G, HJ
Barendra Kumar Ghosh v. Emperor, I.L.R. 52 Cal. 197, Queen v.
$abid Ali and Ors. [1873] 20 W.R. (Cr.) 5 Nanak Chand'"· State of Pu,..
;ah, [1955] 1 S.C.R. 1201 and Suraj Pal v. State of Uttar Pradesh, [1955]
1 S.C.R. 1332, referred to.
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 214
of 1963.
Appeal by special leave from the judgment and order dated
September 18, 1963 of the Patna High Court in Criminal Appeal
No. 368 of 1961.
~44
SuPREME COURT REPORTS
(1966] 3 S.C.R.
Nur-ud-din Ahmed and D. Goburdhun, for the appellants.
The respondent did not appear.
The Judgment of the Court was delivered by
Ramaswami, J. This appeal is brought, by special
leave,
from the judgment of the High Court of Patna dated September,
1963 in Criminal Appeal No. 368 of 1961.
The appellant, alongwith 13 others, was tried by the Additional
Sessions Judge of Patna who by his judgment dated April 22, 1961
convicted all the accused under ss. 302/149, Indian Penal Code
and sentenced them to undergo rigorous imprisonment for life.
Lakhan and Indo were convicted under s. 148, Indian Penal Code
and sentenced to undergo rigorous imprisonment for two years
and Gopi was convicted under s. 147, Indian Penal Code and sentenced to rigorous imprisonment for one year. Inda was also
convicted under s. 326, Indian Penal Code and Gopi was convicted
under s. 326/109, Indian Penal Code and were sentenced to undergo
rigorous imprisonment for eight years. Appellant Lakhan was
convicted under ss. 326/149, Indian Penal Code but no separate
sentence was awarded on this charge.
Lakhan and I ndo were
convicted under s.19(f) ofthe Arms Act and sentenced to undergo
rigorous imprisonment for two years each. Five of the accused
persons were acquitted and 8 of them were convicted on charges
under ss. 302/149, 326/149, 148 and 147, Indian Penal Code.
The appellants alongwith 8 others who were so convicted,
appealed to the High Court of Patna which allowed the appeal of
the 8 persons but dismissed the appeal of the appellants with the
following modifications: The conviction of the appellants under
ss. 302/149, Indian Penal Code, s. 148,s. 147 and ss. 326/149, Indian
Penal Code was set aside and the appellants were acquitted of those
charges. The conviction of Lakhan under s. 302/149, Indian
Penal Code was altered into a minor offence under s. 326, Indian
Penal Code, but the sentence of life imprisonment imposed upon
him was maintained. The conviction and sentence of Inda under
a. 326, Indian Penal Code and of Gopi under ss. 326/109, Indian
Penal Code were upheld. The conviction and sentence of Lakhan
and Inda under s. 19(f) of the Arms Act were also upheld.
The case of the prosecution is that on October, 7, 1959 at
about 10 a.m. deceased Sheosahay Mahto went to look after his
paddy field in Belwa Khandha. On arriving at the spot, he found
appellant Lakhan and one Ishwar putting up a net for catching fish
in his field
after cutting one of its ridges. Sheosahay protested
and there was an altercation between the parties. Sheosahay
threw aside the net and Ishwar and appellant Lakhan went away
towards the village. Sheosahay then repaired the ridge of the
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LAKHAN v. STATE (Rama.swami, J.)
645
field and after weeding some grass he was returning to the village
along the Bazerachak Road. While he was passing by the si.de ~f
a brick-kiln, appellant Lakhan suddenly emerged from behind ~t
with a pistol in his hand and fired at Sheosahay hitting him on his
chest. Sheosahay staggered for a few steps and fell down at the
house of one Baiju. There were 15 or 20 other persons va~ously
armed in the company of Lakhan. Mst. Akhji P.W. 3 wife of
Jitu P.W.7 heard the report of a gunfire while she was in her house
situated near the house of Baiju. She came out of her house and
saw Sheosahay lying fallen in the village Jane. She protested to
Gopi who became furious and ordered that she should be assaulte~.
Upon his order, Rajendra who was carrying a gun fired at AkhJI,
P.W.3 on her left arm. After committing the assault all the members
of the mob fled away. On the same evening, at about 5 p.m. a
first information report was drawn up by the Assistant SubInspector of Police, P.W. 14 on the statement of Sheosahay and
both the injured persons were forwarded to Nawadah hospital
where Sheosahay died early next morning.
The appellants pleaded not guilty to the charges and alleged
that they were falsely implicated on account of previous enmity.
The trial court held that it was unsafe to convict appellant Lakhan
on the specific charge under s. 302, Indian Penal Code for causing
the death of Sheosahay as it appeared from the dying declaration
of the deceased (Ex. 8) that accused Ishwar had also shot at him
and as such appellant Lakhan was entitled to benefit of doubt.
The trial court accordingly acquitted Lakhan on the charge under
s.302, Indian Penal Code but convicted him and 2 other appellants
under s. 148, Indian Penal Code and ss. 302/149, Indian Penal
Code. The State Government did not prefer an appeal to the
High Court against the acquittal of Lakhan on the charge under
s. 302, Indian Penal Code but on appeal preferred by the appellant
against the judgment of the Sessions Judge, the High Court altered
the conviction of Lakhan from s. 302/149, Indian Penal Code to
a minor offence under s. 326, Indian Penal code and maintained the
sentence of life imprisonment imposed upon him. The view taken
by the High Court was that the evidence of P.Ws. l, 6, 7 and 8 should
be accepted as true and it must he held that it was Lakhan who
fired the pistol at the deceased and it was Lakhan alone who
fired the pistol shot and not lshwar. The High Court held that
it was competent to it in the appeal preferred by the appellant to
alter the conviction of Lakhan from the constructive offence under
s. 302/149, Indian Penal Code to the substantive offence under
s.302, Indian Penal Code, but "in order. to obviate any technical
objection" the High Court altered the conviction under s.302
read with s. 149 to a minor offence under s. 326, Indian Penal Code
and regard being had to the gravity of the offence, the High Court
maintained the sentence imposed upon Lakhan.
646
SUPllBME COUil T REPOll TS
(1966] 3 S.C.R.
On behalf of appellant Lakhan learned Counsel submitted
that he had been acquitted by the trial court on the specific charge
under s. 302, Indian Penal Code for the overt act of shooting at the
deceased Sheosahay and he was convicted under ss. 302/149, Indian
Penal Code for being a member of an unlawful assembly, the
common object of which was to kill deceased Sheosahay. It was
pointed out that the State Government had not preferred an appeal
against the acquittal of Lakhan on the charge under s. 302, Indian
Penal Code. It was submitted that the High Court cannot, in the
absence of an appeal preferred in this behalf, convict Lakhan again
under s. 302, Indian Penal Code or under s. 326, Indian Penal Code
for the overt act of shooting. It was also pointed out for the
appellant that there was the finding of the High Court that there
was no unlawful assembly and consequently Lakhan was acquitted
of the charge under s. 302, l.P.C. read with s. 149, 1.P.C. The
argument, therefore, presented on behalf of appellant Lakhan is
that the conviction and sentence of Lakhan for a substantive offence
under s. 326, I.P.C. was illegal and must be quashed.
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The powers of the appellate court in disposing of an appeal are
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prescribed by s. 423 of the Criminal Procedure Code which states :
"423.(l) The Appellate Court shall then send for the
record of the case, if such record is not already in Court.
After perusing such record, and hearing the appellant or
his pleader if he appears, and the Public Prosecutor, if he
appears, and, in case of an appeal under section 411-A, subJ:
section (2) or section 417, the accused, if he appears, the
Court may, if it considers that there is no sufficient ground
for interfering, dismiss the appeal, or may-
(a) in an appeal from an order of acquittal, reverse
such order and direct that further inquiry be made, or that
the accused be retried or committed for trial, as the case
may be, or find him guilty and pass sentence on him according to law;
(b) in an appeal from conviction, (I) reverse the finding
and sentence, and acquit or discharge the accused, or order
him to be retried by a Court of competent jurisdiction subordinate to such Appellate Court or committed for trial,
or (2) alter the finding maintaining the sentence or, with or
without altering the finding, reduce the sentence, or, (3) with
or without such reduction and with or without altering the
finding, alter the nature of the sentence, but, subject to the
provisions of section 106, sub-section (3), not so as to
enhance the same;"
Section 423(l)(a) expressly deals with an appeal from an order
of acquittal and it empowers the Appellate Court to reverse the
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LAKHAN v. STATE (Ramaswami, J.)
647
order of acquittal and direct that further inquiry be made or that
the accused may be tried or committed for trial, as the case may be,
or it may find him guilty and pass sentence on him according _to·
law. Section 423(l)(b) in terms deals with an appeal from a con".1ction, and it empowers the Appellate Court to reverse the findi!1g
and sentence and acquit or discharge the accused or order a retnal
by a Court of competent jurisdiction subordinate to such Appellate Court or ,committed for trial. It has been held by this Court in
The State of Andhra Pradesh v. Thadi Narayana(I) that s. 423(l)(b),
Criminal Procedure Code is clearly confined to cases of appeals
preferred against orders of conviction and sentence, and that the
powers conferred by this clause cannot be exercised for the purpose
of reversing an order of acquittal passed in favour of a party in·
respect of an offence charged while dealing with an appeal preferred
by him against the order of conviction in respect of another offence
charged and found proved. It was also pointed out in that case that
where several offences are charged against an accused person the
trial is no doubt one; but where the accused person is acquitted of
some offences and convicted of others the character of the appellate proceedings and their scope and extent is necessarily determined
by the nature of the appeal preferred before the Appellate Court.
If an order of conviction is challenged by the convicted person but
the order of acquittal is not challenged by the State then it is only
the order of conviction that falls to be considered by the Appellate
Court and not the order of acquittal. In exercising the powers
conferred by s. 423(1 )(b) the High Court cannot therefore convert
the order of acquittal into one of conviction and that result can be·
achieved only be adopting procedure prescribed under s. 439 of the
Criminal Procedure Code. In our opinion, the principle of this
decision applies to the present case and it must accordingly be held
that the High Court acted.without jurisdiction in altering the finding
of acquittal of Lakhan on the charge under s. 302, Indian Penal
Code and convicting him on the charge under s. 326, Indian Penal
Code and imposing a sentence of imprisonment on that charge.
In this connection the High Court has taken the view that s.
149, I.P.C. does not constitute a substantive offence and it was
only an enabling section for imposition of vicarious liability and
the conviction on vicarious liability can, therefore, be altered
by the appellate court to conviction for direct liability, though
there was an acquittal by the trial court of the direct liability of the
offence. In our opinion, the view taken by the High Court is
not correct. There is a legal distinction between a charge under
s. 302, I.P.C. and a charge of constructive liability under ss.
302/149, I.P.C., i.e., being a member of an unlawful assembly,
the common object of which was to kill the deceased Sheosahay.
In Barendra Kumar Ghosh v. Emperor (2) Lord Sumner dealt with
(I) A.l.R. 1962 S.C. 240.
(2) I.LR. 52 Cal. 197.
'648
SUPREME COURT RBPORTS
(1966] 3 S.C.R.
the agrument that if s. 34 of the Indian Penal Code bore the
meaning adopted by the Calcutta High Court, then ss. 114 and
149 of that Code would be otiose. In the opinion of Lord
Sumner, however, s. 149 was certainly not otiose, for in any case it
created a specific and distinct offence. It postulated an assembly
of five or more persons having a common object, as named in
s. 141 of the Indian Penal Code and then the commission of
an offence by one member of it in prosecution of that object. Lord
Sumner referred, in this connection, to the decision of the Calcutta
High Court in Queen v. Sabid Ali and Others('). The observation
of Lord Sumner was quoted with approval by this Court in Nanak
Chand v. The State of Punjah(2) in which it was pointed out that
by framing a charge under s.
302, read with s.149, Indian Penal
Code against the appellant it was not charging the appellant with
the offence of murder and to convict him for murder and sentence
him under s. 302 of the Indian Penal Code was to convict him of
an offence with which he had not been charged. It was accordingly
held that the conviction 0f the appellant under s. 302, l.P.C. was
illegal. The same 'iew has been reiterated by this Court in a
later case in Suraj Pal v. The State of Utlar Pradesh.(')
For these reasons we hold that the conviction and sentence
imposed by the High Court on Lakhan under s. 326, Indian Penal
Code is illegal and must be set aside.
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On behalf of the appellants it was also contended that the
prosecution had not been able to establish the other charges of
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which they have been convicted, but having heard learned Counsel
we are not satisfied that the convictions on the other charges are
vitiated by any illegality and we see no reason for interfering with
the judgment of the High Court.
As already pointed out, we set aside the conviction and sentence
imposed on Lakhan on the charge under s. 326, Indian Penal Code;
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otherwise we affirm the decision of the High Court as regards
Lakhan and also as regards the other two appellant~ and dismiss
this appeal.
(I) (1873) 2il W.R. (Cr.) 5.
(2) (1955) 1 S.C.R. 12ill.
(l) (1955) 1 S.C.R. 1332
Appeal dismissed.
Conviction and sentence modified.
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