- (1.)This special leave petition has been filed against the judgment and order dated 4.7.2013 passed by the High Court of Punjab and Haryana at Chandigarh in Criminal Appeal No. D-14-DB of 2005, maintaining the conviction and sentence of life imprisonment of the petitioners under Section 302 of Indian Penal Code, 1860 (hereinafter referred to as the 'IPC').
(2.)Facts and circumstances giving rise to this petition are that: A. As per the case of the prosecution, an FIR No. 69 dated 14.4.2002 was lodged at 1.00 a.m. alleging that five accused persons including the present two petitioners committed the murder of Sarabjit Singh @ Kala. Thus, on the basis of the complaint the case was registered under Sections 148, 302/149 IPC in P.S. Sadar, Phagwara, District Kapurthala.
B. In view thereof, the investigation ensued and after completion of the investigation, a charge sheet was filed against the five accused persons including the present two petitioners under Sections 148, 302/149 and 120-B IPC. The trial was concluded and the learned Sessions Court convicted all the five accused persons including these two petitioners vide judgment and order dated 16.11.2004 for the aforesaid offences and awarded different sentences including life imprisonment under Section 302 IPC.

C. Aggrieved, all the five accused persons preferred Criminal Appeals before the High Court. Accused Pal Singh @ Amarjit Singh, appellant in Criminal Appeal No. D-14-DB of 2005 died during the pendency of the appeals. Thus, his appeal stood abated. Accused Sarabjit Singh and Gurdev Singh @ Manga had been acquitted of the charges under Sections 148 and 302 r/w 149 IPC and the appeal of the present petitioners had been dismissed, and therefore their conviction under Section 302 IPC and the sentences awarded by the trial court remained intact.

Hence, this petition.

(3.)Shri Pramod Swarup, learned senior counsel appearing for the petitioners has vehemently submitted that as one of the accused has died and two have been acquitted by the trial court, the present petitioners had been convicted under Section 302 IPC simpliciter for which no charge had ever been framed. Therefore, the conviction of the petitioners deserves to be set aside. He has also taken us through the judgments of the trial court as well as of the High Court and the relevant evidence to show that none of the petitioners could be held exclusively responsible for the murder of Sarabjit Singh @ Kala. Thus, the petition deserves to be allowed.