- 1 - IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.253 OF 1991 1.Santaram Sitaram Maharnur age about 30 years,Occupation Driver (Abated against Accd no.1 as per Court s order dt.26.4.07) 2.Bhimrao Sitaram Maharnur age about 23 years,occupation Agriculture both residing at Gomewadi Taluka Atpadi,Dist.Sangli .. Appellants (Orig.Accd nos.1 & 2) vs The State of Maharashtra ... Respondent .. Mr.Umesh Mankapure for Appellant no.2 Ms.P.P.Shinde A.P.P.for State-Respondent CORAM: B.H.MARLAPALLE & MRS.MRIDULA BHATKAR,JJ JUDGMENT RESERVED ON: 9th April, 2010 JUDGMENT PRONOUNCED ON: 9th July, 2010 Per B. H. Marlapalle, J. 1. I have gone through the judgment written by Hon’ble Mrs. Justice Mridula Bhatkar and while agreeing with her conclusions, I thought it appropriate to add a few words of mine. - 2 - 2. The IO had submitted the charge-sheet for the offences punishable under Sections 302, 307, 323 and 326 read with Section 34 of IPC. However, by his order dated 17/9/1990 the learned Additional Sessions Judge framed the charge in Sessions Case No. 157 of 1989 for the offences punishable under Sections 147, 148, 149, 302 read with Section 149, 307 read with Section 149, 326 read with Section 149 and Section 323 of IPC despite the fact that there were only four accused. By the impugned order of conviction, appellant nos.1 and 2 came to be convicted for the offences punishable under Sections 302 and 307 of IPC. Appellant No.1 is no more and this appeal, therefore, survives only for appellant no.2. 3. Section 464 of Cr. P. C. states that no finding, sentence or order by a court of competent jurisdiction shall be deemed invalid merely on the ground that no charge was framed or on the ground of any error, omission or irregularity in the charge including any misjoinder of charges, unless, in the opinion of the Court of appeal, confirmation or revision, a failure of justice has in fact been occasioned thereby. If the court of appeal, confirmation or revision is of the opinion that a failure of justice has in fact been occasioned, it may, in the case of an omission to frame a charge, order that a - 3 - charge be framed and that the trial be recommenced from the point immediately after the framing of the charge and in the case of an error, omission or irregularity in the charge, direct a new trial to be had upon a charge framed in whatever manner it thinks fit, provided that if the Court is of opinion that the facts of the case are such that no valid charge could be preferred against the accused in respect of the facts proved, it shall quash the conviction. The Constitution Bench in the case of Willie Slaney Vs. State of Madhya Pradesh (Supra), while dealing with the scheme of Cr. P. C. and the courts power to correct the errors in framing of the charge as well as the scope of Section 464 of Cr. P. C., observed, inter alia, as under:- “6. Before we proceed to set out our answer and examine the provisions of the Code, we will pause to observe 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 lines that accord with our notions of natural justice. - 4 - If he does, it he is tried by a competent Court, if he is told and clearly understands the nature of the offence for which he is being tried, if the case against him is fully and fairly explained to him and he is afforded a full and fair opportunity of defending himself, then, provided there is `substantial’ compliance with the outward forms of the law, mere mistakes in procedure, mere inconsequential errors and omissions in the trial are regarded as venal by the Code and the trial is not vitiated unless the accused can show substantial prejudice. That, broadly speaking, is the basic principle on which the Code is based. ............ It is the substance that we must seek. Courts have to administer justice and justice includes the punishment of guilt just as much as the protection of innocence. Neither can be done if the shadow is mistaken for the substance and the goal is lost in a labyrinth of unsubstantial technicalities. Broad vision is required, a nice balancing of the rights of the State and the protection of society in general against protection from harassment to the individual and the - 5 - risks of unjust conviction. Every reasonable presumption must be made in favour of an accused person; he must be given the benefit of every reasonable doubt. The same broad principles of justice and fair play must be brought to bear when determining a matter of prejudice as in adjudging guilt. But when all is said and done what we are concerned to see is whether the accused had a fair trial, whether he knew what he was being 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.” 4. By referring to the judgment in the case of Slaney (Supra), a three Judge Bench of the Supreme Court in the case of Dalbir Singh vs. State of U. P. [AIR 2004 SC 1990] held that in view of the scheme of Section 464 of Cr. P. C., it is possible for the appellate or revisional court to convict an accused for an offence for which no charge was framed. The Bench more specifically observed as under: - 6 - “ 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 S. 464, Cr. P. C., 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.....” The same view has been reiterated by another coordinate bench in the case of Radha Mohan Singh v. State of U. P. [AIR 2006 SC 951] 5. Section 313 of Cr. P. C. has been amended with effect from - 7 - 31/12/2009 and Subsection (5) inserted therein reads as under:- “(5) The Court may take help of the Prosecutor and Defence Counsel in preparing relevant questions which are to be put to the accused and the Court may permit filing of written statement by the accused as sufficient compliance of this section.” We have noticed from the statement of appellant no.2 recorded under Section 313 of Cr. P. C. by the trial court that he was not put to the circumstance that by way of common intention, along with accused no.1, so as to facilitate the attack on the deceased Laxman, he had held the deceased from behind and thus enabled accused no.1 to assault the deceased with sword. The prosecution failed to bring out the circumstance to rule out the possibility that accused no.2 held the deceased so as to prevent him in attacking any member of the accused party. The order of conviction impugned is passed on 6/2/1991 and during the last 20 years or so the sole surviving appellant has been on bail. At the relevant time, he was shown to be a young man of 23 years of age and at this point of time, in the peculiar facts of this case, it would not be safe to direct retrial by invoking the powers of Section 464 of - 8 - Cr. P. C. nor would it be advisable to take the assistance of Section 313(5) of Cr. P. C. while deciding this appeal. Hence, the conclusions arrived at in the judgment authored by my esteemed colleague are based on and applicable to the peculiar facts of this case alone. (B.H. MARLAPALLE,J.) JUDGMENT (Per Mrs.Mridula Bhatkar,J) 6. Being aggrieved with the judgment and order dated 6th February, 1991 passed by the learned 2nd Additional Sessions Judge, at Sangli in Sessions Case No.157 of 1989 thereby convicting the appellants for the offences punishable under sections 302 and 307 of the Indian Penal Code and sentencing them to undergo life imprisonment, this appeal is preferred by the appellants. 7. The incident has taken place on 15th - 9 - February 1989. One Laxman Bhausaheb Maharnur was killed and Chabburao Bhausahab Maharnur PW 4 was assaulted by the accused. The complainant Chaburao Maharnur PW 4 was residing along with his brother deceased Laxman and his family at Gomewadi District Sangli. The family owned houses and agricultural lands adjacent to the land of the accused. The family of the complainant and the accused in fact are from Maharnur family. However, the hens of the accused Santaram, Bhimrao, Sitaram and Laxmibai used to damage the crops in the complainant s field. The complainant-Chaburao therefore, eight days prior to the incident had given a complaint against original accused no. 3 Sitaram and one Shamrao for the offence of mischief. Therefore, Santaram accused no.1 son of accused no. 3 threatened the complainant. On the day of the incident, Chaburao went to attend a marriage and also to grind grains. When he was returning from the village at about 8 p.m. Accused no.1 Santaram, appellant-accused Bhimrao the deceased Bhanudas restrained him and they all started - 10 - abusing him and accused no.1 who was armed with swords gave a blow of sword on his neck. The appellant-accused no.2 was armed with stones and sticks. The complainant screamed for help. His wife Bhagubhai, brother Laxman and his wife Shardabai rushed their for his rescue wherein the accused gave another blow of sword on his cheek and ears. Bhanudas assaulted him with sticks. Laxman intervened and requested him not to assault him. However,accused no. 2 caught hold of Laxman, accused no.1 gave blows of sword on the head of Laxman. Bhanudas was also assaulted on the head and other parts of the body. Accused no.4 pelted stones and after assaulting complainant, his brother and two ladies the accused ran away. The villagers arrived and Laxman was put in a bullock-cart so as to take him to Dr.Mohite at the village dispensary. Dr.Mohite met them on the way and examined Laxman and declared him dead. The complainant reported the incident to the Police Patil. who took him to the police station. His F.I.R. was recorded by the P.S.O.at Atpadi vide - 11 - C.R.dated 15th February,1989 He was admitted in Cottage Hospital for 9 to 10 days. The police started the investigation. They arrested the accused. Pending the investigation, accused Bhanudas died and hence,the chargesheet was filed against four accused for the offences punishable under section 302,307,326 read with section 34 of the Indian Penal Code. After committal of the case, the learned Additional Sessions Judge, Sangli framed charges against accused nos. 1 to 4 for the offences punishable under sections 147,148,149,326,307,323,307 and 302 of the Indian Penal Code. Before framing of the charges against the four accused persons, accused no. 4 Bhanudas had expired. Accused nos. 1 and 2 are the sons of accused nos. 3 and 4. 8. The learned Additional Sessions Judge acquitted accused no.3 Sitaram Maharnur and accused no.4 Laxmibai Sitaram Maharnur from all the offences and held accused nos.1 and 2 guilty for the offences punishable under section 302 and 307 of the Indian Penal Code and he - 12 - acquitted the accused nos. 1 and 2 from the offences punishable under section 147, 148 and 149 of the Indian penal code. The accused nos. 1 and 2 filed this appeal. During the pendency of the appeal accused no.1 Santaram also expired. Accused no.2 Bhimrao is the only remaining appellant and he has been convicted and sentenced for the offences punishable under section 302 and 307 of the Indian penal code. 9. Mr.Mankapure,learned counsel for the appellant opened his arguments making it clear that the incidence of scuffle did take place between the accused and the group of the complainant. However, the incident has not taken place the way the prosecution witnesses have deposed. He further argued that in the scuffle the appellant-accused Bhimrao was injured and PW 13 Jagannath Keru Jadhav, the Investigating Officer has accordingly given admissions in the cross examination thereby confirming the fact that accused Santaram and accused Bhimrao were injured. He has also - 13 - admitted that subsequently he came to know that accused no.2 Bhimrao had given a report to the outpost at Kargani in respect of the incident of mara-mari (scuffle). He argued that the learned Judge has not correctly appreciated the evidence of the alleged eye witnesses. He has submitted that as per the evidence of the eye witness weapons like sword were used while assaulting Laxman, Shamrao and Chaburao and Shardabai. Dr.Uttam Chandanshiv PW 6 has examined Chaburao on 15th February, 1989 and conducted the post- mortem on the body of Laxman Maharnur on 16th February, 1989. The learned counsel pointed out that the cause of death of Laxman was due to haemorrhage as a result of shock in view of multiple incised wounds and skull fracture and the injuries of the skull fracture were sufficient in the ordinary course of nature to cause his death. While analysing the evidence of the eye witnesses learned counsel pointed out that PW 4 the complainant has deposed that Bhimrao accused no. 2 was armed with sticks and stones and Santaram accused no. 1 gave two blows - 14 - of his sword on his neck. Then deceased Bhanudas gave a stick blow on his back. Then accused no.2 Bhimrao rushed towards Laxman and he caught hold of him. At that time accused no.1 Santaram gave a blow of sword on the head of the deceased Laxman, one blow on the arm and one on the back. Bhimrao gave stick blows on the hand of Shamrao. PW 8 Shardabai has deposed that accused Santaram gave blows of sword on the left and right cheek of Chaburao and accused no.2 Bhimrao gave stick blow on his person. She stated that the accused no.2 hugged Laxman from behind. He pointed out that the nature of the eye witnesses PW 10 Shamrao Maharnur has also attributed a limited role to Bhimrao that Bhimrao was giving stick blows on the person of Laxman Maharnur. He has pointed out that PW 10 Shamrao does not say anything about Bhimrao holding Laxman like the other two eye-witnesses PW 4 and PW 8. Thus, Bhimrao has played a limited role and the evidence of these witnesses is not consistent but, full of discrepencies. - 15 - 10. The learned counsel has further pointed out that the accused is entitled to clear acquittal as he was never charged for the offence under section 302 read with section 34 or 307 read with section 34 of the Indian Penal Code. While drawing our attention to the charge and the points of determination framed by the trial court and the operative order, he argued that the accused were charged for the offences under sections 147, 148,149 302 and 307 of the Indian Penal Code and the points were also determined accordingly and accused nos.1 and 2 were held guilty and convicted for the offences punishable under section 302 and 307 cumulatively and were acquitted for the offences punishable under sections 147,148 and 149 of the Indian Penal Code. The learned counsel vehemently argued that if the accused were not charged under section 34 of the Indian Penal Code then his liability to defend himself is limited to his individual participation in the commission of the offence. He cannot be held liable for the offences under common intention or common object either under - 16 - section 34 or section 149 of the Indian Penal Code. Based on this proposition of law, the learned counsel fortified his submissions that whatever has been deposed by Chaburao PW 4 and PW 8 Shardabai assuming proved and true and taken as it is, it shows that the accused no.2 has given a stick blow on the person of Chaburao and then he held Laxman from behind. The learned counsel has argued that such act by itself does not disclose commission of an offence under section 307 much less section 302 of the Indian Penal Code. In support of his submissions he relied on the evidence of Dr.Uttam Chandanshiv PW 6 who has deposed that Laxman died due to haemorrhage as a result of shock in view of multiple incised wounds and skull fracture and he has submitted that there is no eye witness to say that Bhimrao assaulted on the head of Laxman. The learned counsel in support of his submissions relied on the case of BALA SEETHARAMAIAH VS PERIKE S.RAO reported in (2004) - 17 - 4 SUPREME COURT CASES 557 . He has submitted that at this appellate stage, the accused cannot be held guilty for the offence punishable under section 302 read with section 34 or under section 307 read with section 34 of the Indian Penal Code; Holding him guilty under section 34 in the absence of charge under section 34 of the Indian penal Code will cause great prejudice to the accused. The learned counsel further submitted that the accused is entitled to an acquittal. 11. The learned A.P.P. for the State-respondent while opposing this appeal has submitted that the judgment and order passed by the learned Additional Sessions Judge is legal and is to be confirmed. She submitted that the eye-witnesses have given a detailed description in their depositions attributing the incriminating role to accused no.2 which is sufficient to hold the conviction under sections 307 and 302 of the Indian Penal Code against him. The learned A.P.P.has further submitted that the defence of - 18 - the appellant-accused that the incident has not occured as per the version of the eye-witnesses is false and baseless and not to be accepted. The medical evidence corroborates the ocular evidence on the point of injuries caused by the appellant-accused and other accused which ultimately resulted in the death of Laxman. On the point of omission of charge under section 34 of the Indian Penal Code she has submitted that such omission is not going to cause prejudice to the accused and will not cause miscarriage of justice. At the appellate stage charge under section 34 of the Indian Penal Code can be added as section 216 of the Code of Criminal Procedure states that any court at any stage can alter charge but before the pronouncement of the judgment. She submitted that therefore the charge under section 34 of the Indian Penal Code be added and conviction under sections 302 and 307 is to be upheld. In support of her submissions she has relied on the following judgments: - 19 - (i) DALVIR SINGH VS STATE OF UTTAR PRADESH REPORTED IN 2004 AIR SCW 2119 (ii) BHOOR SINGH AND ANOTHER VS STATE OF PUNJAB REPORTED IN AIR 1974 SUPREME COURT 1256 12. At the outset, considering the defence adopted by the accused, we have no hesitation to hold that the occurence of fracas between the accused and the complainant on the spot is not disputed. Through the evidence of PSI Jadhav PW 13 fact that the accused no.2 Bhimrao was injured in the scuffle is also brought on record by the defence. Dr.Uttam Chandanshiv PW 6 has deposed about the injuries on the person of Chaburao PW 4. The prosecution has proved that Laxman s death was homicidal due to the head injuries and fracture. The injuries on the person of PW 4 Chaburao, if would not have been attended to, they would have led to his death. 13. On the point of the incident, the prosecution has examined and relied on the evidence of the three eye-witnesses namely - 20 - Chaburao,PW 4 Shardabai PW 8 and Shamrao PW 10. All these witnesses have deposed that Santaram accused no.1 was holding a sword and he assaulted PW 4 Chaburao by a sword. Their evidence and the injuries stated in the post mortem report Exhibit 36 corroborate with each other. No good reason is shown to disbelieve these witnesses. The presence of these witnesses on the spot is found natural. While analysing their evidence on the point of actual assault on deceased Laxman and also on PW 4 Chaburao, it is necessary to disect the roles attributed and the actual participation of accused no.2. As per the evidence of Chaburao and Shardabai, accused no.2 caught hold of Laxman from behind and accused no.1 Santaram gave blows of sword on the head and other parts of the body. It shows that Bhimrao accused no.2 has enabled or facilitated the attack of accused no.1 Santaram on Laxman. In fact, due to action of Bhimrao, Laxman could not protest or move. However, it is also true that Bhimrao accused no.2 himself did not gave the blow of any weapon on Laxman. - 21 - 14. Chaburao PW 4 has stated that Bhimrao in the beginning was holding a stick and he and Shardabai PW 8 have deposed that Bhimrao gave a blow of stick to Chaburao from behind. Evidence of Shamrao is different than the evidence of Chaburao and Shardabai on the point of assault of the incident. He does not say anything about Bhimrao holding Laxman but, he deposed that Santaram accused no.1 and deceased accused Bhanudas gave sword and stick blows and assaulted Laxman. Thus the evidence of Shamrao is different than Sharda and Chaburao. However, the evidence of Chaburao and Shardabai corroborates each other and their evidence is found credible considering the sequence of the assault taken place. Thus the submissions made by Mr.Mankapure, that the incident might have taken place in a different manner and not as per the version of the prosecution witnesses is not convincing. PW 4 Chaburao is a star eye-witness of the prosecution and the incident had started with him at the first instance while he was - 22 - returning home from the village after attending the wedding ceremony. When he was passing from the house of the accused there was moonlight and one light on electric pole was on. He has deposed that accused nos. 1 and 2 along with the deceased accused started abusing him. Accused no.1 Santaram was armed with a sword, accused no.2 Bhimrao was armed with a stick and deceased Bhanudas had only stones in his hand. All of a sudden accused no.1 gave him a blow by his sword on the left side near the neck. Therefore, he raised alarm. On hearing it deceased Laxman, his wife Shardabai along with Chaburao s wife rushed to the spot. Accused no. 2 Bhimrao rushed towards Laxman and held him and at that time accused no.1 Santaram gave two blows of sword on the head of Laxman and one blow on the arm and another on his back. Laxman fell down due to injuries. Accused no.1 Santaram continued to give blows of sword to PW 4 Chaburao saying that it was an opportunity which ought not to be missed and in the process of warding of the blows his left hand thumb