TaxTMI 
TaxTMI 
2011 (8) TMI 1397
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.... case and notwithstanding the fact that no charge for such less grave offence had been framed against the offender. In the case in hand, we are concerned with a similar question which arises from the following facts: All the five accused, namely, Rafiq Ahmad, Ahsan, Imamuddin, Arun Kumar and Yashwant Singh, according to the prosecution, in the intervening night of 30th September, 1977 and 1st October, 1977 committed dacoity in Ambassador Car No. UPS 7293 belonging to Rafiq Ahmad. While the car was going on the pucca road from Nehtaur to Dhampur within the jurisdiction of thana Nehtaur, the accused had committed the murder of Jagdish Prasad @ Jagdish Chandra @ Jagdish Babu and thereafter thrown his body in a sugarcane field of one Ikrar Ahmad situated in Village Kashmiri, thana Nehtaur with the intention of screening themselves from punishment for committing any offence. Shri Krishna Garg, uncle of the deceased was carrying on the wholesale business of sugar, Khandsari, flour, food grains etc. under the name of M/s. Badri Prasad Sunder Lal in Mohalla Bari Mandi, Dhampur (Bijnor). This firm had branches in the name of 'Garg Brothers'. The firm used to sell the above ....
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....ossession of Ahsan. These arrests were effected at about 9.00 pm. Similarly, the accused Yashwant Singh was arrested by the police from the railway platform at 1.00 am on 2nd October, 1977. We may refer to the post-mortem report and the ante mortem injuries found by Dr. Saxena (PW8) on the body of the deceased which are as follows: 1. Incised wound with chopping of left ear vertically oblique with 1/2 part of ear missing. 2. Incised wound oblique from above down wards below left side angle of jaw to upper neck 1/1/4"X3/4"X1/4". 3. Incised wound 6"X1"X bone deep at front of neck just above Adam's cartilage. 4. Abrasion 1/4" X 1/4" on back of both shoulders. 5. Abrasion 1/8" X 1/4" on back of right elbow joint. 6. Abrasion 1/4" X 1/4" on outer side and back of left elbow. In the opinion of Dr. Saxena, death was caused on account of respiratory failure and hemorrhage resulting from severing of trachea. The investigation was completed and the charge-sheet in accordance with the provisions of Section 173 of the Code of Criminal Procedure (for short 'Code of Criminal Procedure ') was filed before....
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....e evidence of the said offence to disappear by secreting the dead body of Jagdish Prashad in the sugar cane field of Ikrar Ahmad with the intention of screening yourself from legal punishment and thereby committed an offence punishable under Section 201 IPC and with the cognizance of this Court. And I hereby direct that you be tried by this Court on the said charge 25-2-80 Sd/- Judge Charge read over and explained in Hindi to the accused who pleaded not guilty. Sd/- Judge Sd/- Rafiq, Sd/- Ahsan, Sd/- Imamuddin, Sd/- Arun Kumar Sd/- Yashwant Singh The prosecution examined as many as 12 witnesses to prove its case. Besides the statement of these witnesses, prosecution had also placed reliance on Exhibits Ka-1 to Ka-23. Incriminating evidence against the accused which came on record during the course of the trial was put to the accused whose statement under Section 313 of the Code of Criminal Procedure was recorded by the Court on 20th February, 1981. It may be stated here that in his statement, accused Rafiq Ahmad denied his presence at the place of occurrence and stated that the witnes....
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.... the IPC and as such the entire trial and conviction of the Appellant is vitiated in law. 3. It is also contended that the learned trial court as well as the High Court have erred in fact and in law, have failed to appreciate the evidence in its correct perspective and also that there are serious contradictions between the statements of the witnesses. It is also urged that this being a case of circumstantial evidence, the prosecution has failed to prove the chain of events, pointing towards the guilt of the accused. Therefore, the judgments of the courts below are liable to be set aside. 4. On the contra, it is contended on behalf of the State that despite the present case being a case of circumstantial evidence, the prosecution has been able to establish its case beyond any reasonable doubt. The Appellant has suffered no prejudice, whatsoever, because of his conviction under Section 302 of the IPC. 5. Before we proceed to examine the merit or otherwise of the above rival contentions, it will be important for us to refer to the relevant provisions of the IPC at this stage itself. The relevant provisions read as under: 302. Punishment for murder.- Whoever commits m....
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....on 299 defines 'culpable homicide'. Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide. Except the exceptions provided under Section 300 IPC, culpable homicide is murder if the act by which death is caused is done with the intention of causing death. The intention to cause death is the primary distinguishing feature between these two offences. It is a fine but clear line of distinction. 10. In terms of Section 300 IPC, except in the cases stated in that provision, culpable homicide is murder if the act by which the death is caused is done with the intention of causing death or in terms of any of the circumstances stated secondly, thirdly and fourthly respectively. The law clearly marks a distinction between culpable homicide amounting to murder and culpable homicide not amounting to murder. Another distinction between Sections 302 and 396 is that under the latter, wide discretion is vested in the courts in relation awarding of punishment. The court, in exercise ....
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....he ingredients even of a lesser offence are not satisfied then it may be difficult in a given case for the court to convict the person for an offence of a less grave nature. There can be cases where it may not be possible at all to punish a person of a less grave offence if its ingredients are completely different and distinct from the grave offence. To deal with this aspect illustratively, one could say that a person who is charged with an offence under Section 326 may not be liable to be convicted for an offence under Section 406 IPC because their ingredients are entirely distinct, different and have to be established by the prosecution on its own strength. In other words, the accused has to be charged with a grave offence which would take within its ambit and scope the ingredients of a less grave offence. The evidence led by the prosecution for a grave offence, thus, would cover an offence of a less grave nature. But it is essential that the offence for which the Court proposes to punish the accused, is established beyond reasonable doubt by the prosecution. 13. A Constitution Bench of this Court in the case of Willie (William) Slaney v. State of Madhya Pradesh AIR 1956 SC 11....
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....ect of those decisions can be summarised as follows. XXX 17. It is possible (though we need not so decide in this case) that the recent amendment to Section 537 in the Code of Criminal Procedure (Amendment) Act XXVI of 1955, where mis-joinder of charges has been placed in the curable category, will set at rest the controversy that has raged around the true meaning of N.A. Subramania Iyer v. King-Emperor. In any case, our opinion is that the real object of the Code is to leave these matters to the discretion and vigilance of the courts. Slightly to alter the language of the Privy Council in Babulal Choukhani v. The King-Emperor (1938) L.R. 65 Ind Ap 158, we would say - It must be hoped, and indeed assumed, that magistrates and judges will exercise their jurisdiction fairly and honestly. Such is the implied condition of the exercise of judicial power. It they do not, or if they go wrong in fact or in law, the accused has prima facie a right of recourse to the superior courts by way of appeal or revision; and the cases show how vigilant and resolute the High Courts are in seeing that the accused is not prejudiced or embarrassed by unsubstantial departures fr....
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.... a guide for a conclusion of fact in another, because the facts can never be alike in any two cases however alike they may seem. There is no such thing as a judicial precedent on facts though counsel, and even judges, are sometimes prone to argue and to act if there were. 14. The Court, while laying down the above law, significantly noticed that the Code is a code of procedure and like all procedural laws is designed to further the ends of justice and not to frustrate them by the introduction of endless technicalities. The object of the code is to ensure that an accused person gets a full and fair trial along with certain well-established and well-understood canons of law that accord with the notions of natural justice. 15. In the case of Iman Ali and Anr. v. State of Assam AIR 1968 SC 1464, the Court had the occasion to explain the distinction between the scope, liability and punishment for an offence under Section 396, as opposed to Section 302 IPC. The Court noticed that the offence under Section 396 was no less heinous than an offence under Section 302 though in the latter case, it was obligatory on the part of the Court to record reasons for not awarding death sentence. ....
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.... The conviction of the Appellants under Section 396 IPC, was not based on constructive liability as members of the gang of dacoits. There was clear finding by the court of Session which has been upheld by the High Court that each of these Appellants committed a cold-blooded murder by shooting two inmates of the house simply with the object of facilitating commission of dacoity by them. Those persons were shot and killed even though they had not even tried to put up any resistance. The offence under Section 396 IPC, was therefore, no less heinous than an offence under Section 302 IPC. In these circumstances, when the court of Session gave no reason at all for not awarding the sentence of death and for sentencing them to imprisonment for life only, it cannot be held that the High Court was not justified in interfering with that order. Learned Counsel in this connection refereed us to a decision of a Division Bench of the Allahabad High Court in Lal Singh v. Emperor A.I.R. 1938 All 625, where it was held: We do not consider that as a general rule a sentence of death should necessarily follow a conviction under Section 396, I.P.C., and this Section differs from Sectio....
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....iver had kidnapped a child of five years for the purpose of demanding ransom and later killed the child. The accused had been charged for an offence punishable under Sections 364, 302 and 201 IPC, but was finally convicted for an offence punishable under Section 364A and was awarded sentence of death. This Court held that there was prejudice caused to the Appellant and the sentence was modified from death to rigorous imprisonment for life with conviction under Section 364 IPC. The Court, besides recording the above findings on the merits of the case noticed the precedents in relation to non-framing of charge. The Bench referred to various judgments of this Court in K. Prema S. Rao and Anr. v. Yadla Srinivasa Rao and Ors. (2003) 1 SCC 217, Kammari Brahmaiah and Ors. v. Public Prosecutor, High Court of A.P. (1999) 2 SCC 522, Dalbir Singh v. State of U.P. (2004) 5 SCC 334, Kamalanantha and Ors. v. State of T.N. (2005) 5 SCC 194, Harjit Singh v. State of Punjab (2006) 1 SCC 463 and recapitulated the principles of law stated in these judgments and stated the following precepts of law which would govern such cases: The propositions of law which can be culled out from the aforeme....
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.... show that dismissal will deprive the Defendant of a substantive property right or preclude the Defendant from raising a defense that will be unavailable or endangered in a second suit. Undue prejudice. The harm resulting from a fact-trier's being exposed to evidence that is persuasive but inadmissible (such as evidence of prior criminal conduct) or that so arouses the emotions that calm and logical reasoning is abandoned. 2. A preconceived judgment formed without a factual basis; a strong bias 19. When we speak of prejudice to an accused, it has to be shown that the accused has suffered some disability or detriment in the protections available to him under the Indian criminal jurisprudence. It is also a settled canon of criminal law that this has occasioned the accused with failure of justice. One of the other cardinal principles of criminal justice administration is that the courts should make a close examination to ascertain whether there was really a failure of justice or whether it is only a camouflage, as this expression is perhaps too pliable. With the development of law, Indian courts have accepted the following protections to and rights of the accu....
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....ions 211 to 224 of Chapter XVII of the Code of Criminal Procedure, 1973 have been devoted by the Legislature to the various facets of framing of charge and other related matters thereto. Under Section 211, the charge should state the offence with which the accused is charged and should contain the other particulars specified in that section. In terms of Section 214, in every charge words used in describing an offence shall be deemed to have been used in the sense attached to them respectively by the law under which such offence is punishable. Another significant provision is Section 215 which states that no error in stating either the offence or the particulars required to be stated in the charge, and no omission to state the offence or those particulars, shall be regarded at any stage of the case as material unless the accused was in fact misled by such error or omission, and it has occasioned a failure of justice. Further, the court has been vested with the power to alter the charge. There could be trial of more than one offence together and there could even be joint trial of the accused. We have referred to these provisions primarily to indicate that the purpose of framing....
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....referring to the facts and circumstances of the case and the cross-examination of the prosecution witnesses found that it was unmistakably shown that the defence had made concerted efforts to discredit the testimony of the alleging cruelty, was rejected and the accused was punished for an offence under Section 498A. This clearly demonstrates the principle that in all cases, nonframing of charge or some defect in drafting of the charge per se would not vitiate the trial itself. It will have to be examined in the facts and circumstances of a given case. Of course, the court has to keep in mind that the accused 'must be' and not merely 'may be' guilty of an offence. The mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions. Shivaji Sahebrao Bobade and Anr. v. State of Maharashtra AIR 1973 SC 2622. 22. Having stated the above, let us now examine what kind of offences may fall in the same category except to the extent of 'grave or less grave'. We have already noticed that a person charged with a heinous or grave offence can be punished for a less grave offence of cognate nature whose essentia....
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....ecord, the Courts can always exercise its power to punish the accused for one or the other provided the accused does not suffer any prejudice as afore-indicated. 26. We may now refer to certain cases where this Court had the occasion to deal with such issues. Certain divergent views were also expressed in relation to conversion of an offence from a grave to a less grave offence. In the case of Lakhjit Singh v. State of Punjab 1994 Supp. (1) SCC 173, the accused was charged with an offence under Section 302 IPC and convicted and sentenced for the said offence, both by the Trial Court as well as the High Court. In appeal, a Division Bench of this Court considered whether the offence could be converted and the Appellant could be convicted for an offence under Section 306 IPC. Having regard to the evidence adduced by the prosecution and the answer of the accused to the questions put to him under Section 313 of the Code of Criminal Procedure, the Court was satisfied that the accused had fair notice of the allegations to attract an offence under Section 306 IPC and as such there was no denial of fair trial to the accused. Finally, the Court convicted him of an offence under Section 30....
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....ng tried for, whether the main facts sought to be established against him were explained to him fairly and clearly and whether he was given a full and fair chance to defend himself. 17. There are a catena of decisions of this Court on the same lines and it is not necessary to burden this judgment by making reference to each one of them. Therefore, in view of Section 464 Code of Criminal Procedure, it is possible for the appellate or revisional Court to convict an accused for an offence for which no charge was framed unless the Court is of the opinion that a failure of justice would in fact occasion. In order to judge whether a failure of justice has been occasioned, it will be relevant to examine whether the accused was aware of the basic ingredients of the offence for which he is being convicted and whether the main facts sought to be established against him were explained to him clearly and whether he got a fair chance to defend himself. We are, therefore, of the opinion that Sangarabonia Sreenu AIR 1957 SC 623 was not correctly decided as it purports to lay down as a principle of law that where the accused is charged under Section 302 IPC, he cannot be convicted for the....
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....04B are different, held as follows: 15. Section 222(1) of the Code deals with a case "when a person is charged with an offence consisting of several particulars". The section permits the court to convict the accused "of the minor offence, though he was not charged with it". Sub-section (2) deals with a similar, but slightly different situation. 222. (2) When a person is charged with an offence and facts are proved which reduce it to a minor offence, he may be convicted of the minor offence, although he is not charged with it. 16. What is meant by "a minor offence" for the purpose of Section 222 of the Code? Although the said expression is not defined in the Code it can be discerned from the context that the test of minor offence is not merely that the prescribed punishment is less than the major offence. The two illustrations provided in the section would bring the above point home well. Only if the two offences are cognate offences, wherein the main ingredients are common, the one punishable among them with a lesser sentence can be regarded as minor offence vis-�-vis the other offence. 17. The composition of the offence unde....
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....cution in such a situation. If that be so, when an accused has no notice of the offence under Section 304-B IPC, as he was defending a charge under Section 302 IPC alone, would it not lead to a grave miscarriage of justice when he is alternatively convicted under Section 304-B IPC and sentenced to the serious punishment prescribed there under, which mandates a minimum sentence of imprisonment for seven years. 32. The serious consequence which may ensue to the accused in such a situation can be limned through an illustration: If a bride was murdered within seven years of her marriage and there was evidence to show that either on the previous day or a couple of days earlier she was subjected to harassment by her husband with demand for dowry, such husband would be guilty of the offence on the language of Section 304-B IPC read with Section 113B of the Evidence Act. But if the murder of his wife was actually committed either by a dacoit or by a militant in a terrorist act the husband can lead evidence to show that he had no hand in her death at all. If he succeeds in discharging the burden of proof he is not liable to be convicted under Section 304B IPC. But if the husband is....
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....uld accept to support such a verdict but neither prosecution nor defence seek it. Lord Bingham of Corn hill spoke thus on behalf of his four learned colleagues: The public interest in the administration of justice is, in my opinion, best served if in any trial on indictment the trial judge leaves to the jury, subject to any appropriate caution or warning, but irrespective of the wishes of trial counsel, any obvious alternative offence which there is evidence to support. I would not extend the rule to summary proceedings since, for all their potential importance to individuals, they do not engage the public interest to the same degree. I would also confine the rule to alternative verdicts obviously raised by the evidence: by that I refer to alternatives which should suggest themselves to the mind of any ordinarily knowledgeable and alert criminal judge, excluding alternatives which ingenious counsel may identify through diligent research after the trial. Application of this rule may in some cases benefit the Defendant, protecting him against an excessive conviction. In other cases it may benefit the public, by providing for the conviction of a lawbreaker who deserves punish....
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....on' which normally is applied between an existing statute and a newly enacted law. The expression 'murder' appearing in Section 396 would have to take necessarily in its ambit and scope the ingredients of Section 300 of the IPC. In our opinion, there is no scope for any ambiguity. The provisions are clear and admit no scope for application of any other principle of interpretation except the 'golden rule of construction', i.e., to read the statutory language grammatically and terminologically in the ordinary and primary sense which it appears in its context without omission or addition. These provisions read collectively, put the matter beyond ambiguity that the offence of murder, is by specific language, included in the offences under Section 396. It will have the same connotation, meaning and ingredients as are contemplated under the provisions of Section 302 IPC. 33. In light of the principles afore-stated, now we may revert to the facts and circumstances of the case in hand. It is admittedly a case of circumstantial evidence and, thus, the evidence has to be examined in that context. There is no dispute to the fact that the charge under Sections 396 and 20....
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....sugarcane field. 34. The above circumstances have to be examined along with the statements of Ved Prakash (PW2) and Gyan Chand (PW4), the witnesses who had last seen the deceased with the Appellant. The statements of the Investigating Officer (PW11) and the witnesses including Pyare Lal (PW3), in whose presence the dead body was recovered at the behest of the Appellant, by means of recovery memo Ex. PW Ex-Ka 3 are the other material pieces of evidence which would complete the chain of events and point undoubtedly towards the guilt of the accused. The accused, for the reasons best known to him, had taken up a stand of complete denial in his statement dated 20th February, 1981 recorded under Section 313 Code of Criminal Procedure and opted not to explain his whereabouts at the relevant time. Furthermore, he was a regular taxi driver at the stand of Agency Chauraha It is true that the statement under Section 313 Code of Criminal Procedure cannot be the sole basis for conviction of the accused but certainly it can be a relevant consideration for the courts to examine, particularly when the prosecution has otherwise been able to establish the chain of events. It is clearly establishe....
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....hese circumstances it could not be urged that the Appellant could not be convicted of the offence under Section 302, Indian Penal Code if such a charge could be made out against him (Vide our decision in Willie (William) Slaney v. State of Madhya Pradesh Crl App No. 6 of 1955 D/- 31-10-1955 ((S) AIR 1956 SC 116) (F) 36. The above Constitution Bench judgment of this Court, in law, squarely applies to the present case. We ought not be understood to say that the facts of both the cases are identical. In the case of Shyam Behari (supra), the accused had killed the deceased while retreating after committing the dacoity while in the present case the evidence, though circumstantial, is that the Appellant had killed the accused brutally and then hid his dead body in the fields to destroy the evidence. Thus, suffice it to note that both the cases have some similarity in circumstances but the principle of law stated in Shyam Behari's case (supra) is squarely applicable to the present case. 37. For the reasons afore-recorded, we are of the considered view that no prejudice has been caused to the Appellant by his conviction for an offence under Section 302 IPC though he was initially....