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Sec.302 r/w 149 / 34 I.P.C- 5 accused – lower court not punished the appellants under sec.148 , high court acquitted two accused , one died – these two appellants remained as they are convicted simply under sec.302 I.P.C – whether framing of fresh charge under sec.302 I.P.C is necessary – Evidence on record and proved fact that these two appellants are the prime caused for the death of deceased victim – Apex court held that when there is no prejudice to the accused by non-framing of separate charge under sec.302 simpliciter not fatal for convicting the accused – Lowe court and High court rightly convicted the accused and as such dismissed the appeals = Pal Singh & Anr. …Appellants Versus State of Punjab …Respondent=2014(Feb.Part) judis.nic.in/supremecourt/filename=41253

Sec.302 r/w 149 / 34 I.P.C– 5 accused – lower court not punished the appellants under sec.148 , high court acquitted two accused , one died – these two appellants remained as they are convicted simply under sec.302 I.P.C – whether framing of fresh charge under sec.302 I.P.C is necessary – Evidence on record and proved fact that these two appellants are the prime caused for the death of deceased victim – Apex court held that when there is no prejudice to the accused by non-framing of separate charge under sec.302 simpliciter not fatal for convicting the accused – Lowe court and High court rightly convicted the accused and as such dismissed the appeals =

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.

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.

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.

 Initially, the charges had been framed by the trial court  under

      Sections 302 r/w 34 IPC and Section 120-B IPC against all the  accused

      persons. Fresh charges were subsequently framed  under  Sections  148,

      302, 302/149 and 120-B IPC. Therefore, the ultimate situation remained

      that there was charge under Sections 302, 302/149 and 120-B  IPC

 However, they  have

      been acquitted of the charge under Section 120-B IPC.  The High  Court

      has affirmed the conviction and sentence of  the  present  petitioners

      under Section 302 IPC, but set aside the conviction under Section  148

      IPC. 

The ultimate result remains that the present two petitioners  had

      been convicted under Section 302 IPC.

 

Whether it is legally permissible in the facts and circumstances

      of the case to convict these two petitioners  under  Section  302  IPC

      simpliciter without altering the charges by the High Court?

 

Apex court conclusion 

 It is also on record that these two petitioners were having  the

      iron rods while the other three accused named in the  FIR  were  empty

      handed. The evidence on record had been  that  Pal  Singh,  petitioner

      no.1 raised an exhortation that Sarabjit Singh @ Kala be  caught  hold

      and should not escape alive and gave two iron rod blows on  his  head.

      Manjinder Singh, petitioner no.2 gave two iron rod blows on the person

      of Sarabjit Singh, out of which one hit his  forehead  and  other  his

      right cheek.  On hearing  hue  and  cry,  a  large  number  of  people

      gathered on the place of occurrence and all the five  accused  persons

      ran away.

Version of the prosecution and the  injuries  found  on  the

      person of the deceased stood proved by the evidence  of  Gurdev  Singh

      (PW.6) and Amandeep Singh (PW.11) as well as by the deposition of  Dr.

      Daljit Singh Bains (PW.1), Senior  Medical  Officer,  Civil  Hospital,

      Phagwara. The ocular evidence of the eye-witnesses  corroborates  with

      the medical evidence. As there are concurrent findings in this  regard

      we have not been invited to determine the said issue.

 “Sections 34, 114 and 149 of the Indian Penal Code  provide  for

           criminal liability  viewed  from  different  angles  as  regards

           actual participants, accessories and men actuated  by  a  common

           object or a common intention; and the charge is a rolled-up  one

           involving the direct liability and  the  constructive  liability

           without specifying who are directly liable and who are sought to

           be made constructively liable.

Case law

As there were doubts about the  conflict/correctness  of  these

      two judgments, the matter was  decided  by  a  Constitution  Bench  in

      Willie (William) Slaney v. State of Madhya Pradesh, AIR 1956  SC  116,

                 In such a situation, the absence of a charge under  one  or

           other of the various heads of criminal liability for the offence

           cannot be said to be fatal by itself, and  before  a  conviction

           for the substantive offence; without a charge can be set  aside,

           prejudice will have to be made out. In most of the cases of this

           kind, evidence is normally given from the outset as to  who  was

           primarily responsible  for  the  act  which  brought  about  the

           offence and such evidence is of course relevant.

 

 

                       xx         xx         xx

 

 

                  This judgment should not be understood by the subordinate

           courts as sanctioning a deliberate disobedience to the mandatory

           requirements of the Code, or as giving any  license  to  proceed

           with trials without an appropriate charge. The omission to frame

           a charge is a grave defect  and  should  be  vigilantly  guarded

           against. In some cases, it may be so serious that by  itself  it

           would vitiate a trial and render it illegal,  prejudice  to  the

           accused being taken for granted.

 

 

                 In the main, the provisions of section 535 would apply  to

           cases of inadvertence to frame a charge induced  by  the  belief

           that  the  matter  on  record  is  sufficient  to  warrant   the

           conviction   for   a   particular   offence   without    express

           specification, and where the facts  proved  by  the  prosecution

           constitute a separate and distinct offence but closely  relevant

           to and springing out of the same set of facts connected with the

           one charged.”

In Darbara Singh v. State of Punjab, AIR 2013 SC 840, this Court

      considered the similar issue and  came  to  the  conclusion  that  the

      accused has to satisfy the court  that  if  there  is  any  defect  in

      framing the  charge  it  has  prejudiced  the  cause  of  the  accused

      resulting in failure of justice.  It is only in that  eventuality  the

      court may interfere.  The Court elaborated the law as under:

           “The defect in framing of the charges must be so serious that it

           cannot be covered under Sections  464/465  CrPC,  which  provide

           that, an order of sentence or conviction shall not be deemed  to

           be invalid only on the ground that no charge was framed, or that

           there  was  some  irregularity  or  omission  or  misjoinder  of

           charges, unless the court comes to the conclusion that there was

           also, as a consequence, a failure  of  justice.  In  determining

           whether any error,  omission  or  irregularity  in  framing  the

           relevant charges, has led to a failure  of  justice,  the  court

           must have regard to whether an objection could have been  raised

           at an earlier stage during the proceedings or not. While judging

           the question of prejudice or guilt, the court must bear in  mind

           that every accused has a right to a  fair  trial,  where  he  is

           aware of what he is being tried for and where the  facts  sought

           to be established against him, are explained to him  fairly  and

           clearly, and further, where he is given a full and  fair  chance

           to defend himself against the said charge(s).

                 “Failure of justice” is  an  extremely  pliable  or  facile

           expression, which can be made to fit into any situation  in  any

           case. The court must endeavour to find the truth. There would be

           “failure of justice”; not only by unjust conviction, but also by

           acquittal of the guilty,  as  a  result  of  unjust  failure  to

           produce requisite evidence. Of course, the rights of the accused

           have to be kept in mind and also safeguarded,  but  they  should

           not be overemphasised to  the  extent  of  forgetting  that  the

           victims also have rights. It has to be shown  that  the  accused

           has suffered some disability or  detriment  in  respect  of  the

           protections  available  to  him  under   the   Indian   criminal

           jurisprudence. “Prejudice” is incapable of being interpreted  in

           its generic sense and applied  to  criminal  jurisprudence.  The

           plea of prejudice has to be  in  relation  to  investigation  or

           trial, and not with respect to  matters  falling  outside  their

           scope. Once the accused is able to  show  that  there  has  been

           serious prejudice caused to him, with respect to either of these

           aspects, and that the same has defeated the rights available  to

           him under criminal jurisprudence,  then  the  accused  can  seek

           benefit under the orders of the court. (Vide: Rafiq Ahmed @ Rafi

           v. State of U.P., AIR 2011 SC 3114; Rattiram v. State  of  M.P.,

           AIR 2012 SC 1485; and Bhimanna v. State of Karnataka,  AIR  2012

           SC 3026)”.

 

 

      14.   In view  of  the  above,  we  do  not  find  any  force  in  the

      submissions advanced on behalf of the petitioners on this count.

in Dhaneswar Mahakud & Ors. v. State of Orissa, AIR 2006 SC

      1727, wherein though the charge had been framed, this Court held  that

      even if the accused has not been charged with the aid  of  Section  34

      IPC and instead charged with the aid of Section 149  IPC,  he  can  be

      convicted with the aid of Section 34  IPC  when  evidence  shows  that

      there was common  intention to commit the crime and  no  prejudice  or

      injustice has been caused to the accused therein. Even the  conviction

      of the accused under Section 302 IPC simpliciter   is  permissible  if

      the court reaches the conclusion  on  the  basis  of  material  placed

      before it that injuries  caused by the accused were sufficient in  the

      ordinary course of nature to cause death and nature  of  the  injuries

      was homicidal.

      16.   If the test laid down in this case is applied to  the  facts  of

      the instant case both the petitioners can be convicted  under  Section

      302 IPC simpliciter as both of them could be convicted  under  Section

      302/34 IPC as both of them came fully armed with iron rods and both of

      them gave two blows each on the vital part of the body i.e.  head  and

      forehead which proved fatal for the deceased.  More  so,  no  question

      had been put to Dr. Daljit  Singh  Bains  (PW.1)  as  to  whether  the

      injuries caused by each of the petitioners  was  sufficient  to  cause

      death independently. It is not a fit  case  where  this  court  should

      examine the issue any further or grant any indulgence.

            The special leave petition is dismissed accordingly.

2014(Feb.Part) judis.nic.in/supremecourt/filename=41253

B.S. CHAUHAN, A.K. SIKRI

REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
SPECIAL LEAVE PETITION (CRL.)NO. 191 of 2014

 
Pal Singh & Anr. …Appellants
Versus
State of Punjab
…Respondent

 

 
O R D E R

 
Dr. B.S. CHAUHAN, J.
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.
4. Both the courts below had considered the evidence on record and
the relevant issue for us remains to consider the consequences of not
framing the charge properly and none else.
Initially, the charges had been framed by the trial court under
Sections 302 r/w 34 IPC and Section 120-B IPC against all the accused
persons. Fresh charges were subsequently framed under Sections 148,
302, 302/149 and 120-B IPC. Therefore, the ultimate situation remained
that there was charge under Sections 302, 302/149 and 120-B IPC. The
trial court has convicted the present two petitioners and sentenced
them to undergo imprisonment for life and to pay a fine of Rs.2,000/-
each. In default of payment of fine to undergo further RI for one
month each for the offence punishable under Section 302 IPC. These
petitioners also stood convicted and sentenced to undergo RI for a
period of two years each and fine of Rs.1000/- each and in default of
payment of fine, to undergo further RI for a period of one month each
for the offence punishable under Section 148 IPC. However, they have
been acquitted of the charge under Section 120-B IPC. The High Court
has affirmed the conviction and sentence of the present petitioners
under Section 302 IPC, but set aside the conviction under Section 148
IPC. The ultimate result remains that the present two petitioners had
been convicted under Section 302 IPC.
5. Whether it is legally permissible in the facts and circumstances
of the case to convict these two petitioners under Section 302 IPC
simpliciter without altering the charges by the High Court?
In order to decide the limited issue it may be necessary for us
to go into some detail to the factual matrix of the case.
6. The post-mortem report revealed the following injuries on the
person of the deceased:
1) Diffuse swelling 4 cm x 5 cm on the left temporo parietal
region. Clotted blood was present in both the nostrils.
Underlying skull bones were fractured, laceration of the
brain matter was present. Cranial cavity was full of blood.
2) Diffuse swelling 6 cm x 6 cm on the top of head. Skull
bones were fractured. Laceration of brain matter was
present. Cranial cavity was full of blood.
3) Diffuse swelling 6 cm x 5 cm on the right side of the fore-
head. Underlying skull bones were fractured. The cranial
cavity was full of blood.
4) Right eye was black. Underlying bone was normal.
7. It is also on record that these two petitioners were having the
iron rods while the other three accused named in the FIR were empty
handed. The evidence on record had been that Pal Singh, petitioner
no.1 raised an exhortation that Sarabjit Singh @ Kala be caught hold
and should not escape alive and gave two iron rod blows on his head.
Manjinder Singh, petitioner no.2 gave two iron rod blows on the person
of Sarabjit Singh, out of which one hit his forehead and other his
right cheek. On hearing hue and cry, a large number of people
gathered on the place of occurrence and all the five accused persons
ran away. Version of the prosecution and the injuries found on the
person of the deceased stood proved by the evidence of Gurdev Singh
(PW.6) and Amandeep Singh (PW.11) as well as by the deposition of Dr.
Daljit Singh Bains (PW.1), Senior Medical Officer, Civil Hospital,
Phagwara. The ocular evidence of the eye-witnesses corroborates with
the medical evidence. As there are concurrent findings in this regard
we have not been invited to determine the said issue.
8. Shri Pramod Swarup, learned senior counsel has placed a heavy
reliance on the judgment of this Court in Nanak Chand v. State of
Punjab, AIR 1955 SC 274, wherein it has been held that Section 149
IPC creates a specific offence but Section 34 IPC does not, and they
both are separate and distinguishable. Section 149 IPC creates an
offence punishable, but it depends on the offence of which the
offender is by that section made guilty. Therefore, for the
appropriate punishment section must be read with it. Section 34 does
not, however, create any specific offence and there is a clear
distinction between the provisions of Sections 34 and 149 IPC and the
said two sections are not to be confused. The principal element in
Section 34 IPC is the common intention to commit a crime. In
furtherance of the common intention several acts may be done by
several persons resulting in the commission of that crime. In that
situation, Section 34 provides that each one of them would be liable
for that crime in the same manner as if all the acts resulting in that
crime had been done by him alone.
9. In Suraj Pal v. State of Uttar Pradesh, AIR 1955 SC 419, this
Court examined a case where the charge had been framed against the
accused under Sections 147, 307/149 and 302/149 IPC, and there had
been no direct and individual charge against any of the accused for
specific offence under Sections 307 and 302 IPC, though the accused
had been convicted under Sections 307 and 302 IPC. The court had set
aside their conviction as no specific charge had been framed against
any of the accused for which they had been convicted.
10. As there were doubts about the conflict/correctness of these
two judgments, the matter was decided by a Constitution Bench in
Willie (William) Slaney v. State of Madhya Pradesh, AIR 1956 SC 116,
and the court came to the following conclusions:
“Sections 34, 114 and 149 of the Indian Penal Code provide for
criminal liability viewed from different angles as regards
actual participants, accessories and men actuated by a common
object or a common intention; and the charge is a rolled-up one
involving the direct liability and the constructive liability
without specifying who are directly liable and who are sought to
be made constructively liable.
In such a situation, the absence of a charge under one or
other of the various heads of criminal liability for the offence
cannot be said to be fatal by itself, and before a conviction
for the substantive offence; without a charge can be set aside,
prejudice will have to be made out. In most of the cases of this
kind, evidence is normally given from the outset as to who was
primarily responsible for the act which brought about the
offence and such evidence is of course relevant.
xx xx xx
This judgment should not be understood by the subordinate
courts as sanctioning a deliberate disobedience to the mandatory
requirements of the Code, or as giving any license to proceed
with trials without an appropriate charge. The omission to frame
a charge is a grave defect and should be vigilantly guarded
against. In some cases, it may be so serious that by itself it
would vitiate a trial and render it illegal, prejudice to the
accused being taken for granted.
In the main, the provisions of section 535 would apply to
cases of inadvertence to frame a charge induced by the belief
that the matter on record is sufficient to warrant the
conviction for a particular offence without express
specification, and where the facts proved by the prosecution
constitute a separate and distinct offence but closely relevant
to and springing out of the same set of facts connected with the
one charged.”

 
11. In Dhari & Ors. v. State of Uttar Pradesh, AIR 2013 SC 308, this
Court re-considered the issue whether the appellants therein could be
convicted under Sections 302 r/w 149 IPC, in the event that the High
Court had convicted three persons among the accused and the number of
convicts has thus remained less than 5 which is in fact necessary to
form an unlawful assembly as described under Section 141 IPC. This
Court considered the earlier judgments in Amar Singh v. State of
Punjab, AIR 1987 SC 826; Nagamalleswara Rao (K) v. State of A.P., AIR
1991 SC 1075, Nethala Pothuraju v. State of A.P., AIR 1991 SC 2214;
and Mohd. Ankoos v. Pubic Prosecutor, AIR 2010 SC 566, and came to the
conclusion that in a case where the prosecution fails to prove that
the number of members of an unlawful assembly are 5 or more, the court
can simply convict the guilty person
with the aid of Section 34 IPC, provided that there is adequate
evidence on record to show that such accused shared a common intention
to commit the crime in question. (See also: Jivan Lal v. State of
M.P.,(1997) 9 SCC 119; Hamlet v. State of Kerala, AIR 2003 SC 3682;
Fakhruddin v. State of M.P., AIR 1967 SC 1326; Gurpreet Singh v. State
of Punjab, AIR 2006 SC 191; and S. Ganesan v. Rama Raghuraman & Ors.,
AIR 2013 SC 840).
12. In Sanichar Sahni v. State of Bihar, AIR 2010 SC 3786, this
Court considered the issue and held:
“Therefore, … unless the convict is able to establish that
defect in framing the charges has caused real prejudice to him
and that he was not informed as to what was the real case
against him and that he could not defend himself properly, no
interference is required on mere technicalities. Conviction
order in fact is to be tested on the touchstone of prejudice
theory.”
13. In Darbara Singh v. State of Punjab, AIR 2013 SC 840, this Court
considered the similar issue and came to the conclusion that the
accused has to satisfy the court that if there is any defect in
framing the charge it has prejudiced the cause of the accused
resulting in failure of justice. It is only in that eventuality the
court may interfere. The Court elaborated the law as under:
“The defect in framing of the charges must be so serious that it
cannot be covered under Sections 464/465 CrPC, which provide
that, an order of sentence or conviction shall not be deemed to
be invalid only on the ground that no charge was framed, or that
there was some irregularity or omission or misjoinder of
charges, unless the court comes to the conclusion that there was
also, as a consequence, a failure of justice. In determining
whether any error, omission or irregularity in framing the
relevant charges, has led to a failure of justice, the court
must have regard to whether an objection could have been raised
at an earlier stage during the proceedings or not. While judging
the question of prejudice or guilt, the court must bear in mind
that every accused has a right to a fair trial, where he is
aware of what he is being tried for and where the facts sought
to be established against him, are explained to him fairly and
clearly, and further, where he is given a full and fair chance
to defend himself against the said charge(s).
“Failure of justice” is an extremely pliable or facile
expression, which can be made to fit into any situation in any
case. The court must endeavour to find the truth. There would be
“failure of justice”; not only by unjust conviction, but also by
acquittal of the guilty, as a result of unjust failure to
produce requisite evidence. Of course, the rights of the accused
have to be kept in mind and also safeguarded, but they should
not be overemphasised to the extent of forgetting that the
victims also have rights. It has to be shown that the accused
has suffered some disability or detriment in respect of the
protections available to him under the Indian criminal
jurisprudence. “Prejudice” is incapable of being interpreted in
its generic sense and applied to criminal jurisprudence. The
plea of prejudice has to be in relation to investigation or
trial, and not with respect to matters falling outside their
scope. Once the accused is able to show that there has been
serious prejudice caused to him, with respect to either of these
aspects, and that the same has defeated the rights available to
him under criminal jurisprudence, then the accused can seek
benefit under the orders of the court. (Vide: Rafiq Ahmed @ Rafi
v. State of U.P., AIR 2011 SC 3114; Rattiram v. State of M.P.,
AIR 2012 SC 1485; and Bhimanna v. State of Karnataka, AIR 2012
SC 3026)”.
14. In view of the above, we do not find any force in the
submissions advanced on behalf of the petitioners on this count.
15. Shri Pramod Swarup has also placed reliance on the judgment of
this Court in Dhaneswar Mahakud & Ors. v. State of Orissa, AIR 2006 SC
1727, wherein though the charge had been framed, this Court held that
even if the accused has not been charged with the aid of Section 34
IPC and instead charged with the aid of Section 149 IPC, he can be
convicted with the aid of Section 34 IPC when evidence shows that
there was common intention to commit the crime and no prejudice or
injustice has been caused to the accused therein. Even the conviction
of the accused under Section 302 IPC simpliciter is permissible if
the court reaches the conclusion on the basis of material placed
before it that injuries caused by the accused were sufficient in the
ordinary course of nature to cause death and nature of the injuries
was homicidal.
16. If the test laid down in this case is applied to the facts of
the instant case both the petitioners can be convicted under Section
302 IPC simpliciter as both of them could be convicted under Section
302/34 IPC as both of them came fully armed with iron rods and both of
them gave two blows each on the vital part of the body i.e. head and
forehead which proved fatal for the deceased. More so, no question
had been put to Dr. Daljit Singh Bains (PW.1) as to whether the
injuries caused by each of the petitioners was sufficient to cause
death independently. It is not a fit case where this court should
examine the issue any further or grant any indulgence.
The special leave petition is dismissed accordingly.
…………………………….J.
(Dr. B.S. CHAUHAN)

 

 

…………………………………J.
(A.K. SIKRI)
New Delhi,
February 25, 2014

 

 

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