Deep Narayan Chourasia v. State of Bihar
ABHAY MANOHAR SAPRE, J. 1. This appeal is filed against
the final judgment and order dated 14.11.2017 passed by the High Court
of Judicature at Patna in Criminal Appeal (DB) No.77 of 1994 whereby
the High Court dismissed the appeal filed by the appellant herein.
2. In order to appreciate the short question involved in this appeal,
a few relevant facts need mention infra .
3. Five persons, namely, (1) Lukho Prasad Chourasia, (2) Birendra
Prasad Chourasia, (3) Binod Prasad Chourasia, (4) Dee p Narayan
Chourasia and (5) Kanhai Prasad Chourasia were tried for commission
of offence of murder of Kaushalya Devi on 06.02.1992 under Section
302/149 of the Indian Penal Code, 1860 (hereinafter referred to a s
“IPC”) and Section 27 of the Arms Act by the Additional Sess ions
Judge, Munger in Sessions Case No. 264/1992.
4. By judgment dated 08.02.1994, the Additional Sessions Judge
convicted the accused-Kanhai Prasad Chourasia for the commission of
offence under Section 302 IPC and Section 27 of the Arms Act and he
was accordingly sentenced to undergo life imprisonment under Section
302 IPC and rigorous imprisonment for seven years under Section 27 of
the Arms Act. Both the sentences were to run concurrently.
5. So far as co-accused-Lukho Prasad Chourasia, Birendra Prasad
Chourasia, Binod Prasad Chourasia and Deep Narayan Chourasia a re
concerned, all the four were acquitted from the charge of c ommission
of offence under Section 302 IPC. However, all the four accused were
convicted for commission of offence under Section 27 of the Arms Act
and accordingly sentenced to undergo rigorous imprisonment for five
years. The concluding para of the order of Sessions Judge reads as
under:
525
“Accordingly, on the basis of my findings, accused Kanhai
Prasad Chaurasia, who is in custody, is convicted u/ss 302
IPC and 27 of Arms Act and is again remanded to custody
to serve his sentence and accused Lukho Prasad Chaurasia,
Birendra Prasad Chaurasia, Binod Prasad Chaurasia and
Deep Narain Chaurasia; who are on bail; are convicted u/s
27 of Arms Act and, consequently, their bail bonds are
cancelled and are taken into custody to serve their
sentences.”
6. All the five accused named above felt aggrieved by t heir
respective conviction and the award of jail sentence and filed two criminal
appeals in the High Court.
7. So far as Kanhai Prasad Chourasia is concerned, he filed
Criminal Appeal(DB) No.112/1994 whereas the remaining four accused
are concerned, they jointly filed Criminal Appeal(DB) No.77/1994 in
the High Court of Patna. Both the Criminal Appeals were clubbed together
for hearing.
8. So far as Criminal Appeal No.112/1994 filed by the accused
Kanhai Prasad Chourasia is concerned, the question to be considered
therein was only one, namely, whether the Additional Sessions Judge
was justified in convicting him (Kanhai Prasad Choursia) under Section
302 IPC read with Section 27 of the Arms Act.
9. So far as Criminal Appeal No.77/1994 filed by remaining four
accused, namely, Lukho Prasad Chourasia, Birendra Prasad Chourasia,
Binod Prasad Chourasia and Deep Narayan Chourasia is concerne d,
the question involved therein was whether the Additional Sessions Judge
was justified in convicting these four accused under Section 27 of the
Arms Act and sentenced them to undergo rigorous imprisonment for
five years.
10. The High Court, however, was completely under misconception
and misdirected itself by forming an opinion as if all t he five accused
were convicted under Section 302/149 IPC and accordingly went on to
appreciate the evidence and while dismissing both the appe als by a
common judgment convicted four accused under Section 302/149 IPC
along with Kanhai Prasad Chourasia.
DEEP NARAYAN CHOURASIA v. STATE OF BIHAR
[ABHAY MANOHAR SAPRE, J.]
11. This is clear from the first and concluding paras of the impugned
judgment, which are reproduced below:
First Para
“As both these appeals arise out of a judgment date d
8th February, 1994, passed by the 12 th Additional Sessions
Judge, Munger in Sessions Trial No. 264/92, convict ing
the appellants under Section 302 of I.P.C. with lif e
imprisonment and the other accused for offence unde r
Sections 302/149 I.P.C. to life imprisonment, so also each
of them for offence 27 of the Arms Act to five years’ R.I. ,
these appeals have been filed by the appellants and they
are being disposed of by this common judgment.” (Emphasis
supplied)
Concluding Paras
“Even though learned counsel for the appellants by
taking us through the evidence tried to point out mi nor
contradictions in the same, but we find that considering the
complete reading of the evidence, the story as is narrate d
by the witnesses and as it is recorded in the fardbeyan by
P.W.5 Sundar Tanti is proved. It is a case where th e
appellants after the incident that took place in the morning,
with an intention to commit the crime, armed with ri fles
and pistols came to the spot, committed the offence and
while fleeing away, to threaten the villagers who h ad
assembled there, firing in the air ran away. It is a case where
they formed an unlawful assembly, committed the offence
and, therefore, conviction under Section 302 and 302/ 149
of I.P.C. is proper and as the entire conviction is based on
the evidence that came on record, we see no reason to
interfere into the matter and allow this appeal. Th e
prosecution has proved its case and the conviction, in our
considered view, does not suffer from any infirmity.
Accordingly, we see no reason to interfere into the
matter. The appeals being devoid of merit are dismiss ed.
The appellants are on bail. Their bail-bonds are cancelle d.
They are directed to be arrested and taken into cust ody
for undergoing the remaining part of their sentence.”
(Emphasis supplied)
527
12. The effect of the judgment of the High Court is three-fold.
First, both criminal appeals stand dismissed; Second, conviction and
sentence of Kanhai Prasad Choursia under Section 302 IPC read wi th
Section 27 of the Arms Act is upheld; and Third, the remaining four
accused - Lukho Prasad Chourasia, Birendra Prasad Chourasia, Binod
Prasad Chourasia and Deep Narayan Chourasia also stand convict ed
under Section 302 IPC read with Section 149 IPC and Section 27 of the
Arms Act.
13. It is against this judgment, only one accused- Deep Narayan
Chourasia has felt aggrieved and filed this appeal by way of special
leave in this Court.
14. So, the question, which arises for consideration in this appeal,
is whether the High Court was right in dismissing the appeal filed by the
appellant herein.
15. Having heard the learned counsel for the parties and on perusal
of the record of the case, we are constrained to allow the appe al, set
aside the impugned judgment of the High Court and remand the case to
the High Court for re-hearing of the appeal in question on me rits in
accordance with law.
16. In our opinion, the Division Bench failed to apply its judicial
mind and committed fundamental jurisdictional errors as detailed below.
17. The first error was that the High Court proceeded on wrong
factual premise that all the five accused have suffered conviction under
Section 302/149 IPC read with Section 27 of the Arms Act by the
Additional Sessions Judge. It was not so.
18. The second error was that the appellant (Deep Nara yan
Chourasia) along with other three accused (Lukho Prasad Chourasi a,
Birendra Prasad Chourasia and Binod Prasad Chourasia) were acquitted
from the charge of commission of offence under Section 302/149 IP C
by the Additional Sessions Judge but were convicted only under Section
27 of the Arms Act and were sentenced to undergo rigorous imprisonment
for five years. However, as a result of the High Court’ s order, they
were convicted under Section 302/149 IPC without there being any appeal
filed by the State against the order of their acquittal and w ithout there
being any notice of enhancement of their sentence issued by th e High
Court suo motu to these four accused.
DEEP NARAYAN CHOURASIA v. STATE OF BIHAR
[ABHAY MANOHAR SAPRE, J.]
19. In other words and as mentioned above, the question before
the High Court was whether the appellant herein (De ep Narayan
Chourasia) and other three accused were rightly convicted and sentenced
to undergo rigorous imprisonment for five years under Section 27 of the
Arms Act by the Additional Sessions Judge or not. Instead of recording
any finding of affirmation of the conviction or acquittal, as the case may
be, the High Court convicted all the four accused under Section 302/149
IPC also.
20. The third error was that the High Court failed to see that the
Additional Sessions Judge had acquitted all the accused under Section
149 IPC, yet the High Court proceeded to convict all the accused under
Section 149 IPC without there being any appeal filed by the State on this
issue.
21. The fourth error was that though the High Court wrongly
convicted the appellant along with three others for the offence punishable
under Section 302/149 IPC, yet did not award any sentence to any of
the four accused under Section 302/149 IPC.
22. Since the appellant and other three accused were acquitted of
the charge under Section 302/149 IPC by the Additional Sessions Judge,
yet the High Court convicted them under Section 302/149 IPC for the
first time, the sentence prescribed under Section 302/1 49 IPC was
mandatorily required to be awarded to each convicte d accused as
provided under Section 354(3) of the Code of Criminal Procedure, 1973.
23. The effect of the impugned judgment, therefore, is that though
the appellant along with three accused have suffered conviction under
Section 302/149 IPC but without sentence.
24. Now, the next question, which arises for consideration though
not urged by any parties, is whether we should set aside the entire
impugned order or set aside only qua the sole appellant herein because
the other four accused though suffered conviction under Section 302/
149 IPC alike the appellant herein did not file any appeal against their
conviction and secondly, the other accused - Kanhai Prasad Chourasia
whose conviction and sentence under Section 302/149 IPC read wit h
Section 27 of the Arms Act was upheld has also not filed any appeal in
this Court.
529
25. The Constitution Bench of this Court in Durga Shankar Mehta
vs ThakurRaghuraj Singh & Ors., AIR 1954 SC 520 examined the
question as to whether the powers conferred upon this Court under Article
136 of the Constitution can be exercised suo motu to meet the ends of
justice in favour of non-appealing accused.
26. The learned Judge B.K. Mukherjea (as he then was and later
became CJI) speaking for the Bench in his distinctive style of writing
answered the question in affirmative holding that:
“The powers given by Article 136 of the Constitutio n
however are in the nature of special or residuary powe rs
which are exercisable outside the purview of ordinary la w,
in cases where the needs of justice demand interfere nce
by the Supreme Court of the land. The article itsel f is
worded in the widest terms possible. ……. The Constitution
for the best of reasons did not choose to fetter or
circumscribe the powers exercisable under this artic le in
any way……….
This overriding power, which has been vested in the
Supreme Court under Article 136 of the Constitution, is in
a sense wider than the prerogative right of entertaini ng an
appeal exercised by the Judicial Committee of the Pri vy
Council in England.”
27. This Court has since then consistently extended the benefit of
the order passed in appeal under Article 136 of the Constitution also to
those accused who had not preferred the appeal against their conviction
in the light of the aforementioned principle in appropriate cases.[see
Harbans Singh vs. State of U.P. & Ors. , (1982) 2 SCC 101, Raja
Ram & Ors. vs. State of M.P ., (1994) 2 SCC 568, Chellappan
Mohandas & Ors. vs. State of Kerala , 1995 Supp(1) SCC 259, Dandu
Lakshmi Reddy vs. State of A.P., (1999) 7 SCC 69, Anil Rai vs.
State of Bihar , (2001) 7 SCC 318, Bijoy Singh & Anr. vs. State of
Bihar , (2002) 9 SCC 147, Gurucharan Kumar & Anr. vs. State of
Rajasthan , (2003) 2 SCC 698, Suresh Chaudhary vs. State of Bihar ,
(2003) 4 SCC 128, Akhil Ali Jehangir Ali Sayyed vs. State of
Maharashtra , (2003) 2 SCC 708 and Pawan Kumar vs. State of
Haryana (2003) 11 SCC 241].
DEEP NARAYAN CHOURASIA v. STATE OF BIHAR
[ABHAY MANOHAR SAPRE, J.]
28. Having given our anxious consideration to this question and
keeping in view the aforementioned principle of law laid down in decided
cases, we are of the considered opinion that the entire impugned order
deservers to be set aside against all the five accused.
29. In our view, an order, which is based entirely on wrong factual
premise once held illegal by a superior Court at the ins tance of one
accused, cannot be allowed to stand against other non-appealing accused
persons also.
30. It is a fundamental principle of law that an illegality committed
by a Court cannot be allowed to be perpetuated against a person to a Lis
merely because he did not bring such illegality to the notice of the Court
and instead other person similarly placed in the Lis brought such illegality
to the Court’s notice and succeed in his challenge.
31. It will be a travesty of justice delivery system where an accused,
who is convicted of a lesser offence (Section 27 of the Arms Act alone)
and was acquitted of a graver offence (Section 302/149 IPC) is made to
suffer conviction for commission of a graver offence (Section 302/149
IPC) without affording him of any opportunity to defend such charge at
any stage of the appellate proceedings.
32. Needless to say, if the other four accused had filed the appeals
in this Court, they too would have got the benefit of this order. A fortiori,
merely because they did not file the appeals and the case is now remanded
for re-hearing of the appeal at the instance of one accused, t he benefit
of re-hearing of the appeal cannot be denied to other co-accus ed. In
other words, the non-appealing co-accused are also entitled to get benefit
of the order of this Court and are, therefore, entitled for re-hearing of
their appeals along with the present appellant.
33. It is for all these reasons, the impugned order stands set aside
also qua all the accused persons.
34. In the light of the foregoing discussion, the appeal succeeds
and is accordingly allowed. The impugned order is set aside in its entirety.
Both the Criminal Appeals, i.e., Criminal Appeal(DB) No. 77/1994 and
Criminal Appeal(DB) No. 112/1994 are restored to their original numbers
before the High Court for their analogues hearing.
35. We request the High Court to decide both the Criminal Appeals
on their respective merits in accordance with law.
531
36. Since the appellant-Deep Narayan Chourasia out of his total
jail sentence of five years awarded by the Additional Sessions Judge for
commission of offence under Section 27 of the Arms Act has a lready
undergone jail sentence of five months, we release him (Deep Narayan
Chourasia) on bail to the satisfaction of the concerned Trial Court pending
Criminal Appeals before the High Court.
37. We, however, make it clear that we have not expressed any
opinion to the factual aspect of the case on their respective merits, which
is subject matter of the two criminal appeals and, there fore, the High
Court will decide both the appeals on their respective merits uninfluenced
by any observations made by this Court.
38. A copy of this order be sent to other four accused persons by
the Registry of this Court to enable them to appear bef ore the High
Court for prosecuting their appeals.
39. The High Court will issue notice to other four accused persons
before hearing the appeals, if anyone fails to appear. The Hi gh Court
may also consider appointing a lawyer for providing them legal assistance.
Devika Gujral Appeal allowed.
DEEP NARAYAN CHOURASIA v. STATE OF BIHAR
[ABHAY MANOHAR SAPRE, J.]