IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR J U D G M E N T CRIMINAL APPEAL No. 850 of 2004 GURA SINGH & ANR. V/S STATE Date of Judgment : 4th February 2009 PRESENT HON'BLE SHRI N P GUPTA,J. HON'BLE SHRI KISHAN SWAROOP CHAUDHARI,J. Mr. MK GARG & Mr. NIRANJAN SINGH, for the appellants. Mr. ASHOK UPADHYAY, PP, for the State. REPORTABLE BY THE COURT : (PER HON'BLE GUPTA,J.) The two appellants have filed this appeal against the judgment of learned Addl. Sessions Judge (F.T.), Hanumangarh dt. 7.5.2003 convicting them for the offence under Section 302 IPC simplicitor, and sentencing each of them to undergo imprisonment for life along with fine of Rs. 1000/-, in default of payment of fine to undergo one month’s further rigorous imprisonment, so also convicting each of the accused appellant for the offence under section 201 IPC simplicitor, and sentencing each of them to undergo seven years rigorous imprisonment, and to pay a fine of Rs. 1000/-, in default to undergo one month’s further rigorous imprisonment, and directing both the sentences to run concurrently. Necessary facts are that on 27.5.2000 Sukhcharan Singh lodged an oral report at the police station Pilibanga, to the effect that for the last 25- 30 years one Mal Singh Jat Sikh was living in the village, whose house is situate on the outskirts, and Mahendra Kaur was his wife, and there was much difference in the age of the couple. He claimed himself to be a distant relation of Mal Singh. It is then alleged, that the character of Mahendra Kaur was not good, and for the last many days Gura Singh (appellant no.1) was living with Mahendra Kaur, and was having illicit relation. Mal Singh protested any number of times, and this used to be a cause of dispute between the couple. Mal Singh was alleged to be a simpleton, to whom at times Mahendra Kaur used to be-labour. Giving this background it was alleged that 2 some 4 days ago in the night of Tuesday at about 10, when he was going from his house to the field, when he reached in front of the house of Mal Singh, he heard hue and cry from the house of Mal Singh. He also went there, and saw Mahendra Kaur and Gura Singh being there, and Mal Singh was lying on the cot, on his asking, Mahendra Kaur asked him to mind his own business. Then he went to the field, but then, since then he did not see Mal Singh moving around in the village, and Mahendra Kaur also went somewhere away, shutting the house. It was then alleged, that at about 10 in the last evening, one canter (a loading vehicle) came to the house of Mal Singh, which aroused suspicion, whereupon he informed Birbal Ram, Natha Singh, Sahi Ram, Mukhtyar Singh, and Guraditta Singh that Mahendra Kaur and Gura Singh are removing the house hold goods in the night, and he apprehends that Mahedra Kaur and Gura Singh might have killed Mal Singh. Thereupon many persons of the village collected outside the house of Mal Singh, and did not allow Mahendra Kaur to carry the goods, and said, that she will be allowed to take goods on her coming along with Mal Singh. Then, in the morning Mahendra Kaur called him, Natha singh, Birbal, Sahi Ram, Mukhtyar Singh at her house, and told, that she and Gura Singh have killed Mal Singh, they have committed mistake, and 3 they should be pardoned. Thus, it was alleged that the two persons have collectively killed Mal Singh, and have concealed the dead body. On this report a case under Section 302, and 201/34 IPC was registered, being F.I.R. No. 141/2000. After completing investigation charge-sheet was filed in the Court of Judicial Magistrate Ist Class, Pilibanga wherefrom the case was committed to the Court of Sessions Judge, Hanumangarh, and was then transferred to the trial court. Learned trial court framed charges against both the accused persons for the offence under Section 302/34 and 201/34 IPC. Obviously, the accused denied the charges, and the learned trial court conducted the trial, recorded prosecution evidence, then statements of the accused were recorded under Section 313 Cr.P.C., who denied the allegations, and produced two witnesses, D.W.1 Het Ram, D.W.2 Natha Singh while Mahendra Kaur herself appeared as D.W.3. Defence also produced two documents Ex. D-1 and D-2. Learned trial court, after so completing the trial, noticed that from the medical evidence i.e. post mortem report it is clear that the deceased died of throttling. It was also found, that from the 4 investigation it is established that Mahendra Kaur got the corpus of Mal Singh recovered from the soak-pit of the latrine, and also got the weapon of offence recovered. Then extra judicial confession was also found proved to sufficiently implicate both the accused persons, in the offence. Then, in para-18 (numbered second time at page-22 in the bottom) has found that both the accused persons killed Mal singh, his dead body was concealed in the soak pit, and came with a canter to take away the household goods, and on the villagers’ protesting, they confessed the guilt. All this evidence has remained un-rebutted. Thus, it is established, that some time in the night of 23.5.2000, in the house of Mal Singh, at village Ludana both the accused persons formed a common intention to kill him, and in furtherance thereof Mal Singh was throttled to death, and his dead body was disposed of, and thus the evidence of offence was screened off. With recording this categoric finding, the learned trial court proceeded to convict both the accused persons for the offence under Section 302 and 201 IPC simplicitor, and in one sentence observed, that since charges have been framed against the accused persons under Section 302/34 and 201/34, but these charges are only another form of section 302 and 201 IPC, and therefore, they were found proved. 5 Assailing the impugned judgment, learned counsel for the appellant, at the outset submitted, that both the accused were charged for the offence under Section 302/34 and 201/34 IPC, to the effect, that the one accused formed common intention with another accused to kill Mal Singh, and in furtherance thereof Mal Singh was throttled to death. Likewise the other charge was for the offence under Section 201 read with Section 34 IPC, and no charge was framed against any of the accused persons for the offence under Section 302 or 201 IPC simplicitor. According to the learned counsel ingredients of substantive offences read with section 34 and for the substantive offence simplicitor are materially different, inasmuch as in case of the charge for the offence simplicitor the individual act of the accused concerned is required to be proved to be constituting offence charged, while in case of charge with the aid of Section 34 IPC, formation of common intention and commission of the act by any of the accused, in furtherance of that common intention, attracts the liability of all the accused persons forming such common intention. Since both the accused were charged with the allegation of formation of common intention, and the offence having been committed in furtherance 6 thereof, it cannot be said that both the accused persons individually committed the offence under Section 302 or Section 201 IPC, as there is no evidence on record produced by the prosecution to that effect. Thus, the whole conviction is bad, and the appellants are entitled to be acquitted. Learned counsel for the appellant, to substantiate his submission, placed reliance on the judgment of the Hon’ble Supreme Court in Nanak Chand Vs. State of Punjab reported in AIR 1955 SC-274, Suraj Pal v. State of U.P. reported in AIR 1955 SC-419, Willie (William) Slaney v. State of M.P. reported in AIR 1956 SC-116, Lakhan Mahto v. State of Bihar reported in AIR 1966 SC-1742, Sawal Das Vs. State of Bihar reported in 1974 SCC (Cri)-362, and State of W.B. Vs. Vindu Lachmandas Sakhrani reported in 1995 SCC (Cri)-175. According to the learned counsel for the appellants, since this contention goes to the very root of the matter, and entitles the appellants to acquittal, and is a pure legal question, he did not choose to argue the merits of the case, for the present. Learned counsel for the Public Prosecutor supported the impugned judgment by contending, that 7 the learned trial court has positively found, that the offence under Section 302 and 201 IPC are of the same form and substance, as the offence charged, being 302/34 and 201/34, and therefore, the impugned judgment does not require any interference. We have heard learned counsel for the appellant, and learned Public Prosecutor, and perused the record, so also have gone through the various judgments cited at the bar. In Nanak Chand’s case, which is a judgment rendered by a Bench consisting of three Hon’ble Judges, the Hon’ble Supreme Court held, that a charge for substantive offence under Section 302 or Section 325 IPC is for a distinct and separate offence from that under Section 302, read with Section 149, or Section 325 read with Section 149 IPC, and after considering various judgments of different High Courts it was held, that a person charged with an offence read with S. 149 cannot be convicted of the substantive offence, without a specific charge being framed as required by S. 233. Cr. P. C. It was contended before the Hon’ble Supreme Court, on behalf of the Prosecution, that no finding 8 or sentence pronounced shall be deemed invalid, merely on the ground, that no charge was framed. Negativing this contention, it was held, in para-13 and 14 as under:- “13….Section 535 does permit a court of appeal or revision to set aside the finding or sentence if in its opinion the non- framing of a charge has resulted in a failure of justice. Section 537 also permits a court of appeal or revision to set aside a finding or sentence if any error, omission or irregularity in the charge has, in fact occasioned a failure of justice. The explanation to the section no doubt directs that the court shall have regard to the fact that the objection could and should have been raised at an earlier stage in the proceedings. In the present case, however, there is no question of any error, omission or irregularity in the charge because no charge under S. 302, I. P. C. was in fact framed. Section 232, Cr. P. C., permits an appellate court or a court of revision, if satisfied that any person convicted of an offence was misled in his defence in the absence of a charge or by an error in the charge, to direct a new trial to be had upon a charge framed in whatever manner it thinks fit. In the present case we are of the opinion that there was an illegality and not an irregularity curable by the provisions of Ss. 535 and 537, Cr. P. C. Assuming, however, for a moment that there was merely an irregularity which was curable, we are satisfied that, in the circumstances of the present case, the irregularity is not curable because the appellant was misled in his defence by the absence of a charge under S. 302, I. P. C. 14. By framing a charge under S. 302, read with S. 149, I. P. C. against the appellant the Court indicated that it was not charging the appellant with the offence of murder and to convict him for murder and sentence him under S. 302, I.P.C. was to convict him of an offence with which he had not been 9 charged. In defending himself the appellant was not called upon to meet such a charge and in his defence he may well have considered it unnecessary to concentrate on that part of the prosecution case.” With the above, the matter was remanded to the learned trial court for re-trial, after framing charge under Section 302 IPC. Suraj Pal’s case is again a judgment rendered by a Bench comprising of three Hon’ble Judges, it was held in this case that the framing of a specific and distinct charge in respect of every distinct head of criminal liability constituting an offence, is the foundation for a conviction and sentence therefor. It was also held that there were no direct and individual charges against the accused for the specific offences under Ss. 307 and 302, Penal Code. The absence of specific charges against the accused under Ss. 307 and 302 was a very serious lacuna in the proceedings and had materially prejudiced the accused. Hence the conviction and sentence under Ss. 307 and 302 could not be maintained against the accused. In this case after holding this, the Hon’ble Supreme Court went on evidence, and found, the 10 prosecution evidence to be highly interested, and the Hon’ble Supreme Court also found absence of corroboration or other instances and of the nature and found probability of the case. Then, on the question of ordering re-trial, it was held that when we have to consider the desirability or otherwise of retrial, we need not shut our eyes to these features of the case which have been brought on the record. In the circumstances mentioned above we do not consider that the interest of justice require that any retrial should be ordered. We accordingly, direct that there shall be no retrial. Then, the judgment in Willie (William) Slaney’s is a judgment rendered by Constitutional Bench of the Hon’ble the Supreme Court. In this judgment the law regarding framing of the charge, and omission in the framing of charge, was considered threadbare, and it was held as under:- “In generality of cases the omission to frame a charge is not per se fatal. The very broad proposition that where there is no charge the conviction would be illegal, prejudice or no prejudice, cannot be accepted as sound. The group of sections relating to absence of a charge, namely, Ss. 225, 226 and 232 and the power exercisable thereunder, are with reference to a trial which has already commenced or taken place. 11 They would, therefore, normally relate to errors or omissions which occur in a trial that has validly commenced. There is no reason to think that S. 535 of the Code of Criminal Procedure is not also to be understood with reference to the same context. There may be cases where, a trial which proceeds without any kind of charge at the outset can be said to be a trial wholly contrary to what is prescribed by the Code. In such cases the trial would be illegal without the necessity of a positive finding of prejudice. By way of illustration the following classes of cases may be mentioned : (a) Where there is no charge at all as required by the Code from start to finish - from the committing Magistrate's Court to the end of the Sessions trial; (b) Where the conviction is for a totally different offence from the one charged and not covered by S. 236 and 237 of the Code. On a charge for a minor offence, there can be no conviction for a major offence, e.g. grievous hurt or rioting and murder. The omission to frame a separate and specific charge in such cases will be an incurable irregularity amounting to an illegality. 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 S. 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. Regarding the aspect of consequence of such omission, requirement of re-trial etc. was also 12 considered, and it was held in para-99 and 100 as under:- “99. Under the provisions of section 232 of the Code an appellate Court or a High Court exercising its powers of revision or its powers under Chapter XXVII, must direct a new trial of case in which an accused person has been convicted of an offence with which he had not been charged, if it is satisfied that he had been misled in his defence by the absence of a charge. In such a case a court is bound to act according to its provisions. But this does not mean that by virtue of these provisions that which was invalid shall be deemed to be valid, unless, prejudice was shown. It is the provisions of section 535 to which reference must be made in order to ascertain whether that which was invalid shall be deemed to be valid, unless the court was satisfied that there had been a failure of justice. I regard with concern, if not with dismay, a too liberal application of its provisions to all cases in which there is an absence of a charge, although a charge ought to have been framed. It is difficult to lay down any hard and fast rule as to when the provisions of section 535 will or will not be applicable. The facts of each case, as they arise, will have to be carefully considered in order to decide that which was 'prima facie' invalid is deemed to be valid by virtue of its provisions. There may be cases where the omission to frame a charge was merely a technical defect in which case section 535 would apply. On the other hand, there may be cases where failure to frame a charge affects the mode of trial or it is such a substantial contravention of the provisions of the Code relating to the framing of charges that prejudice may be inferred at once and the conviction which was 'prima facie' invalid continued to be so. In a criminal trial innocence of an accused is presumed, unless there is a statutory presumption against him, and the prosecution 13 must prove the accused is guilty of the offence for which he is being tried. The prosecution is in possession of all the evidence upon which it relies to establish its case against the accused. It has the privilege to ask the Court to frame charges with respect to the offence which it wishes to establish against the accused. On the Court itself a duty is cast to frame charges for offences which on the evidence, appear to it 'prima facie' to have been committed. If in spite of this a charge under section 302 read with 149 of the Indian Penal Code only is framed against an accused person and not under S. 302, Indian Penal Code, it will be reasonable to suppose that neither the prosecution nor the Court considered the evidence sufficient to prove that murder was committed by the accused and the omission to frame a charge under section 302 must be regarded as a deliberate act of the Court by way of notice to the accused that he was not being tried for that offence. It would not be a case of mere omission to frame a charge. If, therefore, the accused is convicted under section 302, I would consider, his conviction as invalid, as he was misled in his defence. 100. In conclusion I would point out that the provisions of the Code of Criminal Procedure are meant to be obeyed. Contravention of its provisions are unnecessary and neither the prosecution nor the Courts of trial should ignore its provisions in the hope that they might find shelter under sections 535 and 537 of the Code. Where the contravention is substantial and a retrial becomes necessary, public time is wasted and the accused is put to unnecessary harassment and expense.” Significantly in this case the Hon’ble Supreme Court after saying all the above maintained the conviction, by altering it from one under Section 14 302, to Section 304 IPC, and accused was sentenced to five years rigorous imprisonment. Lakhan Mahto’s case is a case of its typical fact situation, inasmuch as in that case, in murder trial of several accused, one accused L who was specifically charged under Section 302 IPC, was acquitted of the offence but was convicted with the aid of Section 149 IPC. He was also convicted under Section 326/149, but no separate sentence was passed against him. That accused appealed against his conviction, but his acquittal under Section 302 IPC was not challenged. In the accused’s appeal the High Court altered the conviction from Section 302/149 to one under Section 326 simplicitor. In that fact situation, it was held by the Hon’ble Supreme Court, in para 7 as under:- “7……High Court acted without jurisdiction in altering the finding of acquittal of Lakhan on the charge under S. 302 I. P. C. and convicting him on the charge under S.326 I.P.C. and imposing sentence of imprisonment on that charge. Thereafter in para-8 it was noticed that the High Court has taken the view that Section 149 IPC does not constitute a substantive offence and it was only an enabling section for imposition of vicarious 15 liability and the conviction on vicarious liability can, therefore, be altered by the appellate court to conviction for direct liability, though there was an acquittal by the trial court of the direct liability of the offence. It was held that this view taken by the High Court is not correct. Hon'ble Supreme Court referred to and relied upon the judgment in Nanak Chand's case and Suraj Pal's case for the purpose. Then in Sawal Das’ case also, the three accused persons were charged for the offence punishable under Section 302 simplicitor, Sawal Das, Jamuna Prasad and Sita Ram, and eight other persons were charged under Section 201 IPC. One Kalawati Devi was charged under Section 302/109 IPC. The learned trial court amended the charges and converted against Sawal Das, Jamuna Prasad and Kalawati Devi to one under Section 302/34 IPC, and convicted each of them with the aid of Section 34 IPC. Jamuna Prasad was also convicted under Section 201, Sita Ram was also convicted under Section 201, and other accused persons were acquitted. On appeal the High Court acquitted Sawal Das, Jamuna Prasad and Kalawati Devi of the offence under Section 302/34 but had found Sawal Das alone to be guilty under Section 302 simplicitor, so also for the offence under Section 201 IPC. The case 16 depended on circumstantial evidence, as there was no eye witness of the murder, which was alleged to have been committed by the appellant Sawal Das, his father Jamuna Prasad and step mother Kalawati Devi conjointly. The prosecution story was, that on the morning of murder there was a particularly sharp quarrel between the deceased and Kalawati, so that Kalawati who was living in a room adjoining that of the deceased on the first floor called out to the appellant, that his rascal wife was quarreling with her, and informed him as well as Jamuna Prasad that either she or the deceased will live in the house henceforth, and the appellant and his father Jamuna Prasad went upstairs to the Verandah, where the quarrel was taking place, and the appellant took or pushed deceased inside her room, followed by the appellant’s father and his step mother, immediately after that cries of “Bachao” “Bachao” were heard from inside the room, nobody heard the voice of Chanda Devi (deceased) after that, and immediately after these cries, the children of the deceased were heard crying and uttering words, indicating that their mother was either being killed or had been