Rafiq Ahmed @ Rafi vs State Of U.P

The Trial Court, by a detailed judgment dated 17th August, 1981, came to the conclusion that Rafiq Ahmad was guilty of charge under Sections 302 and 201 IPC under which the accused was liable for conviction and punishment. The 10 Court further held that Ahsan was guilty of a charge under Section 411 IPC but acquitted him and the three other accused, namely, Imamuddin, Arun Kumar and Yashwant Singh under Section 396 IPC by giving them benefit of doubt.

The Court awarded rigorous imprisonment for life to Rafiq Ahmad under Section 302 IPC and seven years rigorous imprisonment under Section 201 IPC. Both the sentences were ordered to run concurrently. The Trial Court ordered the accused Ahsan to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs.500/- under Section 411, IPC and in default to undergo imprisonment for further period of six months.

Ahsan also challenged his conviction and sentence. Both these appeals were heard and disposed of by the High Court by a common judgment. The appeal filed by Rafiq Ahmad was dismissed. His conviction and sentence was maintained while the appeal preferred by Ahsan was accepted and he was acquitted even of the charge under Section 411 IPC.

Therefore, in view of Section 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. We are, therefore, of the opinion that Sangarabonia Sreenu (AIR 1957 SC

XXX XXX XXX The next question to be seen is whether the accused was confronted with the aforesaid features of the prosecution case 45 in his statement under Section 313 CrPC.

16. What is meant by "a minor offence"

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35. As the appellant was convicted by the High Court under Section 304-B IPC, without such an opportunity being granted to him, we deem it necessary in the interest of justice to afford him that opportunity. The case in the trial court should proceed against the appellant (not against the other two accused whose acquittal remains unchallenged now) from the stage of defence evidence. He is put to notice that unless he disproves the presumption, he is liable to be convicted under Section 304-B IPC."

"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 53 the conviction of a lawbreaker who deserves punishment. A defendant may, quite reasonably from his point of view, choose to roll the dice. But the interests of society should not depend on such a contingency.

(emphasis supplied)"

31. As is evident from the above stated principles of law in various judgments, there is no absolute bar or impediment, in law, in punishing a person for an offence less grave than the offences for which the accused was charged during the course of the trial provided the essential ingredients for adopting such a course are satisfied.

and opted not to explain his whereabouts at the relevant time.

39. For the reasons afore-stated, we find no merit in this appeal and the same is dismissed.

August 4, 2011