REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL No.180 OF 2019

Deep Narayan Chourasia            ….Appellant(s)

VERSUS

State of Bihar     ….Respondent(s)

                 J U D G M E N T

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.

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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) Deep 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 as

“IPC”) and   Section 27 of the Arms Act by the

Additional Sessions Judge,  Munger in Sessions

Case No. 264/1992.  

4. By judgment dated 08.02.1994, the Additional

Sessions Judge convicted the accused­Kanhai

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

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rigorous imprisonment for seven years under

Section 27 of the Arms Act. Both the sentences were

to run concurrently.

5. So far as co­accused­Lukho Prasad Chourasia,

Birendra Prasad Chourasia, Binod Prasad

Chourasia and Deep Narayan Chourasia are

concerned, all the four were acquitted from the

charge of commission 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:

“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

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bonds are cancelled and are taken into custody to serve their sentences.”

6. All the five accused named above felt aggrieved

by their 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

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(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

concerned, 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 the five accused were

convicted under Section 302/149 IPC and

accordingly went on to appreciate the evidence and

while dismissing both the appeals by a common

judgment convicted four accused under Section

302/149 IPC along with Kanhai Prasad Chourasia.  

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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 dated 8th February, 1994, passed by the 12th Additional Sessions Judge, Munger in Sessions Trial No. 264/92,  convicting the appellants under Section 302 of I.P.C.  with life imprisonment and the other accused for offence under 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 minor contradictions in the same, but we find that considering the complete reading of the evidence, the story as is narrated by the witnesses and as it is recorded  in the fardbeyan by P.W.5 Sundar Tanti is proved. It is a case where the appellants after the incident that took place in the morning, with an intention to commit the crime, armed with rifles and pistols came to the spot, committed the offence and while fleeing  away, to threaten the  villagers  who had assembled there, firing in the air ran away.  It is a case where they formed an unlawful assembly, committed the offence

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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. The 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 dismissed. The appellants are  on  bail. Their bail­bonds are cancelled. They are directed to be arrested and taken into custody for undergoing the remaining part of their sentence.” (Emphasis supplied)

12. The effect of the judgment of the High Court is

three­fold. First, both criminal appeals stand

dismissed; Second, conviction and sentence of

Kanhai Prasad Choursia under Section 302 IPC

read with 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 convicted  under  Section  302  IPC read

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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 appeal,  set aside the

impugned judgment of the High Court and remand

the case to the  High  Court for re­hearing of the

appeal in question on  merits 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.

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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

Narayan Chourasia) along with other three accused

(Lukho Prasad Chourasia, Birendra Prasad

Chourasia and Binod Prasad Chourasia) were

acquitted from the charge of commission of offence

under Section 302/149 IPC 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 without there being any

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notice of enhancement of their sentence issued by

the High Court suo motu to these four accused.

19. In other words and as mentioned above, the

question before the  High  Court  was  whether the

appellant herein (Deep 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.  

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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 302/149 IPC was mandatorily required to

be awarded to each convicted 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.

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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 with Section 27 of

the  Arms  Act  was  upheld  has  also  not filed any

appeal in this Court.

25. The Constitution Bench of this Court in Durga

Shankar Mehta vs Thakur Raghuraj 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 non­appealing accused.  

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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 Constitution however are in the nature of special or residuary powers which are exercisable  outside the  purview of  ordinary law, in cases where the needs of justice demand interference by the Supreme Court of the land. The article itself 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 article 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 entertaining an appeal exercised by the Judicial Committee of the Privy 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

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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].  

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

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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 instance 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

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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 re­hearing of the appeal at the

instance of one accused, the benefit of re­hearing of

the appeal cannot be denied to other co­accused. In

other words, the non­appealing co­accused are also

entitled to get benefit of  the order of this Court  and

are, therefore, entitled for re­hearing 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

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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.  

36. Since the  appellant­Deep 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

already 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

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matter of the two criminal appeals and, therefore,

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  before 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 High Court may also

consider appointing a lawyer for providing them

legal assistance.         

                                .………...................................J.                                 [ABHAY MANOHAR SAPRE]                                 

…...……..................................J.                   [DINESH MAHESHWARI]

New Delhi; February 25, 2019

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