Document Fragment View
Fragment Information
Showing contexts for: section 460 ipc in Kewal Krishan vs State Of Punjab And Others on 18 October, 2012Matching Fragments
Mr. Vipan Mahajan, learned counsel for the petitioner has argued that If a person committing house-breaking by night also actually commits murder he must attract the penalty of offence under Section 302 IPC and it is 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.
Reliance has been placed on a judgment of Hon'ble the Supreme Court rendered in a case of Abdul Aziz vs. State of Rajasthan, 2007(2) R.C.R (Criminal) 964 wherein while examining provision of Section 302 and 460 IPC, it has been held that if a person commits house-breaking by night and also commits murder, his act attracts Section 302 IPC.
On the other hand, learned State counsel has not been able to cite any law to the contrary.
Heard learned counsel for the parties.
In the case of Abdul Aziz (supra), Hon'ble the Supreme Court had an occasion to examine the appeal, which was directed against the judgment delivered by Rajasthan High Court, Jaipur Bench in D.B. Criminal No. 513/04 converting the conviction under Section 460 IPC imposed by Additional District and Sessions Judge, Jaipur in Sessions case No. 49/2001 to conviction under Section 302 IPC. In that case, no appeal was filed by the State for the enhancement of the sentence . Abdul Aziz was accused and was convicted under Section 460 IPC. 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 was sentenced to ten years rigorous 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 Sections 302/149 IPC and was sentenced to life imprisonment. However, Hon'ble the Supreme Court had partly allowed the appeal filed by the appellant against the High Court judgment and has held that the sentence of the life imprisonment imposed by the High Court judgment shall stand substituted by the sentence of rigorous imprisonment for ten years and fine of ` 500/- as imposed by the trial Court vide its judgment dated 09.03.2004. The reason given by Hon'ble the Supreme Court was against the judgment of conviction by the trial Court, no appeal was filed by the State for enhancement of conviction under Section 302 IPC read with Section 149 IPC. No prior notice of enhancement was issued by the High Court. The High Court had observed that through inadvertence, the trial Court had failed to invoke Section 302/149 IPC.
Reference has been made to the judgment of Madras High Court, rendered in a case of '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.
In that judgment, reference has further been made to the judgment of this Court passed in a case of 'Sohan Singh Kesar Singh vs. State of Punjab, AIR 1964 Punjab 130 wherein 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: