Charge under abetment theory required for murder conviction; absence of such charge rendered the conviction unsustainable.

A conviction under Section 302 read with Section 109 IPC could not be sustained where no corresponding charge under Section 109 had been framed and the trial proceeded on a different basis. Section 109 was treated as a distinct basis of liability, and substituting a murder conviction with abetment without putting that case to the accused caused legal infirmity and serious prejudice to the defence. The conviction was therefore unsustainable and the accused was entitled to acquittal.

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Issues: Whether a conviction under Section 302 read with Section 109 of the Indian Penal Code could be sustained when no charge was framed against the appellant under Section 109 and the trial was conducted on a different basis.

Analysis: Section 109 was treated as a distinct offence in the context of the prosecution case. The appellant had been tried as a member of an unlawful assembly with constructive liability, and the High Court substituted a conviction for murder with the aid of abetment without a corresponding charge. Such a course caused legal infirmity and serious prejudice to the defence, because the accused had not been called upon to meet that specific case.

Conclusion: The conviction under Section 302 read with Section 109 of the Indian Penal Code could not be sustained and the appellant was entitled to acquittal.

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