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On Monday, the Supreme Court set aside a judgment of the Patna High Court that upheld a conviction that was not so.
The Trial Court had convicted only one out of five accused under section 302 of the Indian Penal Code (IPC) in a murder case. The other four were convicted of committing a crime under Section 27 of the Arms Act.
In the appeal filed by all the accused against respective convictions, the High Court erred in determining that their conviction under Section 302/149 of the IPC was correct and proper. Although it upheld the sentence, it did not award any sentence to the convicts under section 302 IPC.
The bench of Justice Abhay Manohar Sapre and Justice Dinesh Maheshwari took note of the mistake made by the High Court in an appeal filed by one of the four convicts.
"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. ", said the bench declaring that the case deserves to be remanded to High Court for rehearing.
While setting aside the High Court order qua all the accused, the bench observed that it is a fundamental principle of the law that an illegality committed by a Court cannot be allowed to be perpetuated against a person in a Lis simply because he has not brought such illegality to the notice of the Court and on the other hand another person similarly placed in the LIS brought such illegality to the notice of the Court and was successful in its challenge.
The court further observed, ‘‘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.’’
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