KAMIL versus STATE OF UTTAR PRADESH
[2018] 13 S.C.R. 1093, Supreme Court of India, 2018
Outcome: Dismissed (Dismissed)
Segment: Facts
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1093
KAMIL
v.
STATE OF UTTAR PRADESH
(Criminal Appeal No. 1568 of 2015)
OCTOBER 31, 2018
[R. BANUMATHI AND INDIRA BANERJEE, JJ.]
Code of Criminal Procedure, 1973: s. 464 – Effect of omission
to frame, or absence of, or error in, charge – On facts, conviction
of accused u/s. 302/34 IPC – However, omission to frame charge
u/s. 302, though the gist of the charge sheet filed against the accused
clearly showed that the accused has been charged for the said
offence – Maintainability of conviction u/s. 302 – Held: Conviction
for the substantive offence without a charge can be set aside only if
the accused shows that prejudice has been caused to him and that
“failure of justice” has occasioned thereby – No such submission
was ever made before the trial court or before the High Court – No
prejudice caused to the accused nor failure of justice shown to
have been occasioned – Furthermore, the gist of the charge sheet
clearly alleged their sharing of common intention in committing the
murder of victim with the co-accused and the appeal by the similarly
situated co-accused has been dismissed by this Court – Thus, the
order passed by the High Court upholding the conviction of the
accused u/s. 302/34 does not warrant interference – Penal Code,
1860 – s. 302/34.
Dismissing the appeal, the Court
HELD: 1.1 Section 464 Cr.P.C. relates to the effect of
omission to frame, or absence of, or error, in charge. Sub-section
(1) thereof provides that no finding, sentence or order of 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
charge, unless, in the opinion of the court of appeal, confirmation
or revision, a failure of justice has in fact been occasioned thereby.
Absence of charge would vitiate the conviction only if it has caused
prejudice to the accused and has in fact been occasioned thereby.
[Para 10, 11][1098-F-G; 1099-B]
[2018] 13  S.C.R. 1093
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1.2 The charge was not framed against the appellant under
Section 302 read with Section 34 IPC. But it is for the accused to
prove that omission to frame charge has occasioned in a failure
of justice. Though specific charge under Section 302/34 was not
framed, the gist of the charge sheet filed against the appellant/
accused clearly shows that the accused has been charged for the
offence under Section 302/34. In the charges framed, even if the
appellant and co-accused were charged only under Section 323/
34, the gist of the charge sheet clearly alleges their sharing of
common intention in committing the murder of victim with the
first accused. [Para 18][1104-F-G; 1105-E]
1.3 After filing of the charge sheet, case was committed to
the court of Sessions. The trial court has pointed out that the
accused persons were charged under Sections 302, 302/34, 323
and 323/34 IPC to which they pleaded not guilty and opted for
trial. The appellant/accused has thus, clearly understood that
charge has been framed against him under Section 302 read with
Section 34 IPC. If really, the appellant was under the impression
that no charge was framed against him under Section 302 read
with Section 34 IPC, the appellant would have raised the objection
for his committal to the Sessions Court. Appellant has not raised
the objection as to non-framing of charges at the earliest point of
time namely the trial court and the High Court. [Para 19]
[1105-F-G]
1.4 The procedure followed by the Court has neither caused
prejudice to the appellant nor deprived him of principles of Natural
Justice. In the High Court, the appellant did not raise any
grievance as to non-framing of charge under Section 302 read
with Section 34 IPC and that it has caused prejudice to him. On
the other hand, the counsel appearing for the appellant only
contended that the appellant ought not to have been convicted
by invoking the principle of vicarious liability enshrined by Section
34. All these aspects clearly show that the appellant clearly
understood that charge under Section 302 read with Section 34
has been framed against him and throughout he has been
defending himself only for the charge under Section 302. [Para
20, 21][1106-D, F]
1.6 The appeal preferred by the similarly situated co-
accused has been dismissed by this Court. A conviction for the
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substantive offence without a charge can be set aside only if the
accused shows that prejudice has been caused to him and that
“failure of justice” has occasioned thereby. No such argument
was ever made before the trial court or before the High Court.
No prejudice has been caused to the accused nor failure of justice
has been shown to have been occasioned warranting interference
with the impugned judgment. [Para 23][1107-D]
Willie (William) Slaney v. State of Madhya Pradesh AIR
1956 SC 116; Gurbachan Singh v. State of Punjab AIR
1957 SC 623; Main Pal v. State of Haryana (2010) 10
SCC 130; Darbara Singh v. State of Punjab (2012) 10
SCC 476; Mohan Singh v. State of Bihar (2011) 9 SCC
272 – referred to.
Case Law Reference
AIR 1956 SC 116
referred to
Para 11
AIR 1957 SC 623
referred to
Para 13
(2010) 10 SCC 130
referred to
Para 14
(2012) 10 SCC 476
referred to
Para 15
(2011) 9 SCC 272
referred to
Para 22
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
1568 of 2015
From the Judgment and Order dated 28.07.2014 of the High Court
of Judicature at Allahabad in Criminal Appeal No. 1047 of 1989.
Ashok Kumar Sharma, Kshitij Mudgal, Ms. Bandana Singh, Advs.
for the Appellant.
Ankur Prakash, Ashutosh Kumar Sharma, Yudhister Bhardwaj,
Ms. Lhing N., Advs. for the Respondent.
The Judgment of the Court was delivered by
R. BANUMATHI, J. 1.This appeal arises out of the judgment
dated 28.07.2014 passed by the High Court of Allahabad in Criminal
Appeal No.1047 of 1989 in
and by which the High Court has dismissed
the appeal filed by the appellant thereby affirming his conviction under
Section 302 IPC and for other offences and sentence of life imprisonment
imposed upon him passed by the trial court.
KAMIL v. STATE OF UTTAR PRADESH
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2. Brief facts of the case are that on 03.01.1986 at about 09.00
AM, complainant-Baboo Khan (PW-3) who is the maternal uncle of
deceased Akhlaq was informed by his father that his sister’s daughter
Parveen had gone to fetch water from the tank where accused Rashid
(A1) and Adil (A3) had misbehaved with her. However, no further action
was taken by them to save their reputation. On the same day, at around
04.00 PM, when complainant/PW-3 along with his nephew deceased
Akhlaq and Aadil Hussain (PW-2) were going towards his shop, they
saw accused Rashid armed with knife, Nasir (A2) armed with hockey,
accused Adil and appellant-Kamil (A4) armed with danda in their hands
coming towards them and surrounded PW-1, deceased Akhlaq and PW-
3. Thereafter, appellant-Kamil gave a danda blow on the head of PW-
2 and when deceased Akhlaq tried to snatch the hockey stick from
accused Nasir, appellant-Kamil also gave a danda blow on the head of
deceased from behind and when he tried to run away, accused Nasir
and Adil caught hold of deceased and thereafter accused Rashid stabbed
the knife in the chest of deceased on which deceased fell down on the
ground with the knife which was stabbed on his chest. On raising alarm
by PW-3, Jamal Uddin (PW-1) along with other people came there for
help. Thereafter, all the accused ran away and deceased was taken to
the hospital, where he died. Upon completion of investigation, charge
sheet was
filed against the accused persons.
3. Charges were framed against the accused under Sections 302,
302 read with Section 34, 323 and 323 read with Section 34 IPC.      To
bring home the guilt of the accused, the prosecution examined eight
witnesses and exhibited number of documents.
4. Upon consideration of evidence adduced, the trial court vide
its judgment dated 01.05.1989 convicted the accused as under:-
Accused
Conviction
Sentence
Rashid (A1) Section 302 IPC 
Section 323 read with Section 34 IPC 
Life Imprisonment 
One month R.I. 
Nasir (A2)
Section 302 read with Section 34 IPC
Section 323 read with Section 34 IPC 
Life Imprisonment
One month R.I. 
Adil (A3) 
Section 302 read with Section 34 IPC 
Section 323 read with Section 34 IPC 
Life Imprisonment 
One month R.I. 
Kamil (A4) 
Section 302 read with Section 34 IPC 
Section 323 IPC 
Life Imprisonment 
One month R.I.
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5. Being aggrieved, the appellant/accused filed appeal before the
High Court which came to be dismissed vide impugned judgment dated
28.07.2014.  Further, appeal preferred by the accused Nasir before the
Supreme Court in SLP(Crl) No.9886 of 2014 was dismissed vide order
dated 22.01.2015.
6. Prosecution relies upon the evidence of eye-witness Babu/
Baboo Khan (PW-3), Jamaluddin (PW-1) and Aadil (PW-2) who have
categorically stated that on the date of incident i.e on 03.01.1986 at
04.00 PM, PW-3 along with his nephew deceased Akhlaq and Adil
Hussain (PW-2) was going to his shop at Jogipura and when they reached
near the temple at Lalpur, they saw all the four accused persons standing
and waiting for them.  PW-3 further deposed that at that time accused
Rashid was having knife in his hand whereas accused Nasir and Kamil
were having hockey and danda in their hands respectively.  Immediately
thereafter, appellant/accused Kamil gave a danda blow on the head of
Adil Hussain (PW-2).  When deceased Akhlaq tried to snatch hockey
stick from accused Nasir, appellant/accused Kamil gave a danda blow
on the head of deceased Akhlaq from behind. When deceased Akhlaq
tried to run away in order to escape himself, accused Nasir and Adil
caught hold of his both hands and at the same time, appellant/accused
Kamil assaulted Adil (PW-2) with danda.  When PW-3 snatched danda
from appellant/accused Kamil and tried to retaliate to the attack with
the same danda, accused Rashid
pierced knife in the chest of deceased
Akhlaq.  At this, PW-3 shouted for help and on hearing this, Jamaluddin
(PW-1), Afsar Ali Khan and Shamshad Hussain who were taking tea at
the stall of PW-3 rushed towards the spot.  On seeing them, accused
persons fled away from the spot.  Thereafter, PW-3 took a cycle-
rickshaw and took deceased Akhlaq to district hospital. Deceased Akhlaq
was struggling for his life as the knife was still penetrated in his heart.
PW-3 deposed that he himself took out the knife from the chest of
deceased.  In the hospital, deceased succumbed to injuries.  The evidence
of PW-3 and injured eye-witnesses Aadil Hussain (PW-2) and Jamaluddin
(PW-1) is cogent and consistent.
7. Contention of the appellant is that charge under Section 302
IPC was not framed against him and therefore the conviction of the
appellant/accused under Section 302 IPC is not maintainable.  Contention
of the appellant is that non-framing of charge under Section 302 IPC
has caused prejudice to him.  It was further submitted that even though
KAMIL v. STATE OF UTTAR PRADESH
[R. BANUMATHI, J.]
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the question being a substantive question, the appellant is at liberty to
raise the same at any stage.
8. Placing reliance upon Section 464 Cr.P.C., learned counsel
appearing for the respondent-State submitted that a conviction would be
valid even if there is any omission to frame charge provided it has not
occasioned a “failure of justice”.  Taking us through the judgment of
the trial court and the High Court, the learned counsel submitted that the
appellant was well-aware of the gist of charges under Section 302 IPC
against him and in fact the appellant has taken the “plea of alibi”.  It
was submitted that even if there was absence of charge, the appellant
has not proved “failure of justice” has in fact been occasioned and the
conviction of the appellant recorded by the concurrent findings of the
trial court and the High Court under Section 302 IPC cannot be interfered.
9. We have considered the rival contentions and perused the
impugned judgment and materials placed on record.
10. Section 464 of the Code relates to the effect of omission to
frame, or absence of, or error, in charge. Sub-section (1) thereof provides
that no finding, sentence or order of 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 charge, unless, in the opinion of the court of
appeal,
confirmation or revision, a failure of justice has in fact been
occasioned thereby.  Section 464 Cr.P.C. reads as under:-
“464. Effect of omission to frame, or absence of, or error
in, charge –
(1) 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.
(2) If the court of appeal, confirmation or revision is of opinion
that a failure of justice has in fact been occasioned, it may—
(a) in the case of an omission to frame a charge, order that a
charge be framed and that the trial be recommenced from the
point immediately after the framing of the charge;
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(b) 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.”
11. Absence of charge would vitiate the conviction only if it has
caused prejudice to the accused and has in fact been occasioned thereby.
In Willie (William) Slaney v. State of Madhya Pradesh AIR 1956 SC
116, the Constitution Bench explained the concept of “prejudice caused
to the accused” and “failure of justice” and held as under:-
“5. 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 certain well-established and well-understood lines that
accord with our notions of natural justice.
If he does, if 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. (Underlining added)
12. The Constitution Bench then examined as to whether the
procedure followed by the court has caused actual injustice to the accused
and held as under:-
“12. ……Except where there is something so vital as to cut at the
root of jurisdiction or so abhorrent to what one might term natural
justice, the matter resolves itself to a question of prejudice. Some
violations of the Code will be so obvious that they will speak for
themselves as, for example, a refusal to give the accused a hearing,
a refusal to allow him to defend himself, a refusal to explain the
nature of the charge to him and so forth. These go to the
KAMIL v. STATE OF UTTAR PRADESH
[R. BANUMATHI, J.]
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foundations of natural justice and would be struck down as illegal
forthwith. It hardly matters whether this is because prejudice is
then patent or because it is so abhorrent to well-established notions
of natural justice that a trial of that kind is only a mockery of a
trial and not of the kind envisaged by the laws of our land, because
either way they would be struck down at once. Other violations
will not be so obvious and it may be possible to show that having
regard to all that occurred no prejudice was occasioned or that
there was no reasonable probability of prejudice. In still another
class of case, the matter may be so near the border line that very
slight evidence of a reasonable possibility of prejudice would swing
the balance in favour of the accused.
43. ….. 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. If all these elements are there and no prejudice
is shown, the conviction
must stand whatever the irregularities
whether traceable to the charge or to a want of one.”
13. Following the Constitution Bench in Willie Slaney case, the
bench of three Judges of this Court in Gurbachan Singh v. State of
Punjab, AIR 1957 SC 623 observed that the Court is not to looking into
technicalities, but to the substance and held as under:-
“7. …..in judging a question of prejudice, as of guilt, courts must
act with a broad vision and look to the substance and not to
technicalities, and their main concern should be to see 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…….”
14. After considering the meaning of the expression “failure of
justice” and after referring to the Constitution Bench in Willie Slaney
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and Gurbachan Singh, this Court in Main Pal v. State of Haryana
(2010) 10 SCC 130, held as under:-
15. In Shamnsaheb M. Multtani v. State of Karnataka (2001)
2 SCC 577, this Court considered the meaning of the expression
“failure of justice” occurring in Section 464 Cr.PC. This Court
held thus:
“……
22. … a conviction would be valid even if there is any omission
or irregularity in the charge, provided it did not occasion a failure
of justice.
23. … The criminal court, particularly the superior court should
make a close examination to ascertain whether there was really
a failure of justice or whether it is only a camouflage.
……..”
16. The above principles are reiterated in several decisions of
this Court, including State of W.B.and Another v. Laisal Haque
and Others (1989) 3 SCC 166, State of A.P. v. Thakkidiram
Reddy and Others (1998) 6 SCC 554, Dalbir Singh v. State of
U.P. (2004) 5 SCC 334, Dumpala Chandra Reddy v. Nimakayala
Balireddy and Others (2008) 8 SCC 339 and Sanichar Sahni v.
State of Bihar (2009) 7 SCC 198.
17. The following principles relating to Sections 212, 215 and 464
of the Code, relevant to this case, become evident from the said
enunciations:
(i) The object of framing a charge is to enable an accused to have
a clear idea of what he is being tried for and of the essential facts
that he has to meet. The charge must also contain the particulars
of date, time, place and person against whom the offence was
committed, as are reasonably
sufficient to give the accused notice
of the matter with which he is charged.
(ii) The accused is entitled to know with certainty and accuracy,
the exact nature of the charge against him, and unless he has
such knowledge, his defence will be prejudiced. Where an accused
is charged with having committed offence against one person but
on the evidence led, he is convicted for committing offence against
KAMIL v. STATE OF UTTAR PRADESH
[R. BANUMATHI, J.]
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another person, without a charge being framed in respect of it,
the accused will be prejudiced, resulting in a failure of justice. But
there will be no prejudice or failure of justice where there was an
error in the charge and the accused was aware of the error. Such
knowledge can be inferred from the defence, that is, if the defence
of the accused showed that he was defending himself against the
real and actual charge and not the erroneous charge.
(iii) In judging a question of prejudice, as of guilt, the courts must
act with a broad vision and look to the substance and not to the
technicalities, and their main concern should be to see 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.  (Underlining
added)
15. In Darbara Singh v. State of Punjab(2012) 10 SCC 476, this
Court considered the similar issue and came to the conclusion that the
accused has to satisfy the court that there is any defect in framing the
charge which 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:-
“20. The defect in framing of the charges must be so serious that
it cannot be covered under Sections 464/465 Cr.P.C, 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).
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21. ‘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 Ahmad alias Rafi v. State of U.P. (2011)
8 SCC 300, SCC p. 320, para 36; Rattiramand Others v. State of
M.P.Through Inspector of Police (2012) 4 SCC 516 and
Bhimanna v. State of Karnataka (2012) 9 SCC 650)”
(Underlining added)
16. The question falling for
consideration is whether non-framing
of charge has caused prejudice in the present case.  In order to judge
whether a failure of justice has been occasioned, it is relevant to examine
whether the accused was aware of the basic ingredients of the offence
for which he is being convicted and whether they were explained to him
and whether he got a fair chance to defend. The crux of the issue is
whether in this case, omission to frame charge under Section 302 IPC
has vitiated conviction of the appellant/accused.
17. The charges framed against the accused are as under:-
“Charges
I,  C. P. Singh, Special Judge (E.C. Act), Budaun hereby charge
you
1. Nasir s/o Wali Mohammad r/o Oopar Para P.S. Kotwali,
Badaun
2. Adil r/o
KAMIL v. STATE OF UTTAR PRADESH
[R. BANUMATHI, J.]
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3. Kamil s/o Banney Min as follows:-
Firstly:- That you Rashid on 03.01.1986 at about 04.00 PM in
Mohalla Oopar Para near Lalpul Budaun, P.S. Kotwali Budaun,
formed common intention to make murderous assault on Akhlaq
and anyone else who came to his rescue and in furtherance of
said common intention Rashid did commit murder by intentionally
causing the death of aforesaid Akhlaq and you thereby committed
an offence punishable under Section 302/34 of the Indian Penal
Code and within my cognizance.
Secondly:- That you Adil on aforesaid date, time and place
voluntarily caused Adil and thereby committed an offence
punishable under Section 323 of the Indian Penal Code and within
my cognizance.
Thirdly:- That on aforesaid date, time and place you Kamil and
Nasir along with Rashid and Adil formed common intention to
cause hurt to Adil and anyone else and in furtherance of said
common intention Adil voluntarily caused hurt to Adil and you
thereby committed an offence punishable under Section 323/34
of the Indian Penal Code and within my cognizance.
And I hereby direct that you be tried by this court on the said
charges.
(C.P. Singh)
Addl. District Judge,
Special Judge (E.C. Act),
Budaun 18.09.1986"
18. As seen from the above, charge was not framed against the
appellant under Section 302 read with Section 34 IPC. But it is for the
accused to prove that omission to frame charge has occasioned in a
failure of justice. Though
specific charge under Section 302 read with
Section 34 IPC was not framed, the gist of the charge sheet filed against
the appellant/accused clearly shows that the accused has been charged
for the offence under Section 302 read with Section 34 IPC as seen
from the following:-
“Sir,
On 03.01.1986, the complainant came to the Police Station Kotwali
and orally informed that his niece went to take water from the
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tap. She was teased by the accused but they did not make it an
issue due to the respect in the society. However, there was an
ugly quarrel over there. He pacified his niece. I along with Adil
and Akhlaq today were going to my shop situated at Jogipuraat
about 04.00 PM, when we reached near Lalpur Mandir, accused
mentioned in Column No.2 and 3 were present there. Kamil was
carrying a Danda Nasir was carrying a hockey and Rashid
was carrying knife in their hands. They surrounded us. They
abused my nephew Adil. Adil protested about abusing and said
that it would not be good if you continue. On this accused hit
my nephew with danda.I snatched danda from Kamil to save
my nephew. Accused Nasir and Adil caught hold my
nephewand Rashid poked the knife in his chest. My nephew
sat down on the earth and his condition started deteriorating. I
carried him to hospital where he died. On the basis of this
information a crime case No.2/86 u/s 302/323/34 IPC. Accused
Rashid and others were arrested and were sent to jail. Accused
Kamil is not available and the investigation is going on against
him. The charge sheet is filed u/s 302/323/34 IPC against these
accused persons. Dated 13.01.1986.”
In the charges framed, even if the appellant and accused Nasir were
charged only under Section 323 read with Section 34 IPC, the gist of the
charge sheet clearly alleges their sharing of common intention in
committing the murder of Akhlaq with the first accused Rashid.
19. It is
pertinent to note that after filing of the charge sheet, case
was committed to the court of Sessions.  The trial court has pointed out
that the accused persons were charged under Sections 302, 302/34, 323
and 323/34 IPC to which they pleaded not guilty and opted for trial.The
appellant/accused has thus clearly understood that charge has been
framed against him under Section 302 IPC read with Section 34 IPC. If
really, the appellant was under the impression that no charge was framed
against him under Section 302 read with Section 34 IPC, the appellant
would have raised the objection for his committal to the Sessions Court.
It is also to be pointed out that the appellant has not raised the objection
as to non-framing of charges at the earliest point of time namely the trial
court and the first appellate court - High Court.
20. Learned counsel for the appellant made submissions contending
that even the relevant questioning showing sharing of common intention
KAMIL v. STATE OF UTTAR PRADESH
[R. BANUMATHI, J.]
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SUPREME COURT REPORTS
[2018] 13  S.C.R.
of the appellant has not been put to the accused during questioning under
Section 313 Cr.P.C.  The above contention does not merit acceptance
as seen from the following:-
“Q.4  It has come in the evidence that on 03.01.1986 at about
04.00 PM near Lal Pul Mandir, you accused Kamil and Nasir
carrying danda and hockey caused injuries to Adil (nephew of
witness). You accused Nasir and Adil caught hold Akhalq and at
the instance of accused Kamil you accused Rashid stabbed the
knife in the chest of Akhlaq and caused murder. What do you say
about it?
Ans.  It is wrong.”
Question No. 5 relates to the lodging of complaint by the informant Babu.
Question No.10 relates to the filing of the charge sheet against the
appellant and other accused.  As pointed out in para (14) above, the gist
of the charge sheet clearly alleges sharing of common intention by the
appellant/accused. In our considered view, the procedure followed by
the Court in the instant case has neither caused prejudice to the appellant
nor deprived him of principles of Natural Justice.
21. It is also to be pointed out that in the High Court, the appellant
has not raised any grievance as to non-framing of charge under Section
302 read with Section 34 IPC and that it has caused prejudice to him.
On the other hand, the learned counsel appearing for the appellant only
contended that the appellant Kamil ought not to have been convicted by
invoking the principle of
vicarious liability enshrined by Section 34 IPC.
All these aspects clearly show that the appellant clearly understood that
charge under Section 302 read with Section 34 IPC has been framed
against him and throughout he has been defending himself only for the
charge under Section 302 IPC.  In such facts and circumstances, it
cannot be said that the failure of justice has occasioned to him and the
absence of a charge under Section 302 read with Section 34 IPC cannot
be said to have caused any prejudice to him.
22. In Mohan Singh v. State of Bihar (2011) 9 SCC 272, where
the appellants therein for the first time raised the points relating to errors
in framing of charge before the Supreme Court, this Court held as under:-
“14. In a case where points relating to errors in framing of charge
or even misjoinder of charge are raised before this Court for the
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first time, such grievances are not normally considered by this
Court. Reference in this connection may be made to the decision
of a three-Judge Bench of this Court in Mangal Singhand Others
v. State of Madhya Bharat AIR 1957 SC 199. Imam, J. delivering
a unanimous opinion of the Court held in para 5 at p. 201 of the
Report as follows:
“5. It was, however, urged that there had been misjoinder of
charges. This point does not seem to have been urged in the
High Court because there is no reference to it in the judgment
of that Court and does not seem to have been taken in the
petition for special leave. The appellants cannot, therefore, be
permitted to raise this question at this stage.”
23. It is also pertinent to point out that the appeal preferred by the
similarly situated co-accused Nasir has been dismissed by this Court.   A
conviction for the substantive offence without a charge can be set aside
only if the accused shows that prejudice has been caused to him and
that “failure of justice” has occasioned thereby. No such argument
was ever made before the trial court or before the High Court. As
discussed above in our considered view, no prejudice has been caused
to the accused nor failure of justice has been shown to have been
occasioned warranting interference with the impugned judgment.
24. In the result, the appeal is dismissed.
Nidhi Jain
Appeal dismissed.
KAMIL v. STATE OF UTTAR PRADESH
[R. BANUMATHI, J.]