Mere omission or defect in framing the charge does not disable the court from convicting the accused for the offence which is found to have been proved on the evidence on record: Gauhati High Court

Page No.# 1 13 THE GAUHATI HIGH COURT HIGH COURT OF ASSAM NAGALAND MIZORAM AND ARUNACHAL PRADESH) Case No. : Crl.A. 397 2019 HAFIZUR RAHMAN AND 2 ORS. S O LATE DALILUR RAHMAN R O VILL. NO. 1 KAKI NO. 6 GAON JARONI BLOCK P.O. AND P.S. KAKI DIST. HOJAI ASSAM PIN 782446 2: SOIDUR RAHMAN S O LATE DALILUR RAHMAN R O VILL. NO. 1 KAKI NO. 6 GAON JARONI BLOCK P.O. AND P.S. KAKI DIST. HOJAI PIN 782446 3: SAHIDUR RAHMAN S O LATE DALILUR RAHMAN R O VILL. NO. 1 KAKI NO. 6 GAON JARONI BLOCK P.O. AND P.S. KAKI DIST. HOJAI PIN 782446 S O LATE HABIBUR RAHMAN R O VILL. NO. 1 NO. 6 GAON THE STATE OF ASSAM AND ANR TO BE REP. BY THE LEARNED PUBLIC PROSECUTOR ASSAM GAUHATI Page No.# 2 13 JARONI BLOCK P.O. AND P.S. KAKI DIST. HOJAI PIN 782446 Advocate for the Appellants : ALHAJJ INAM UDDIN Advocate for the Respondent : MR. M PHUKAN ADDL. PP ASSAM HONOURABLE MR. JUSTICE SUMAN SHYAM HONOURABLE MR. JUSTICE MIR ALFAZ ALI JUDGMENT & ORDER2013 whereby the appellants were convicted u s 302 IPC and sentenced to undergo rigorous imprisonment for life and fine of Rs.10 000 each with default stipulation 3. The prosecution case in a nutshell was that on 19 06 2009 at about 3.30 PM nine accused persons named in the FIR entered into the land possessed by Habibur Rahman deceased) and started cutting bamboos and accused Mukutarpelted stone at the house of the informant. When the informant Lutfur came out of the house the accused Sahidur Rahman Hasibur and Rafique Ali all armed with “dao” chased Lutfur Rahman and he ran away out of fear. Thereafter the accused Sahidur Rahman Hasibur Rahman Rafique Ali Hafizur Rahman and Saidur Rahman assaulted Habibur Rahman Motibur Rahman and Dhan by “dao” “lathi” spear etc. and also demolished the dwelling house of Habibur Rahman. Habibur Rahman succumbed to the injuries at the spot. Lutfur Rahman(PW 1) lodged the FIR(Ext. 1) on the basis of which police registered Kaki PS Case No. 32 2009 Page No.# 3 13 u s 147 148 149 447 302 326 336 302 427 IPC and upon completion of investigation submitted charge sheet against nine accused persons including the present appellants. 4. Based on the charge sheet and the materials produced therewith learned Sessions Judge framed charges against all the charge sheeted accused persons u s 447 34 and u s 147 148 IPC. Further the learned Sessions Judge framed charges u s 302 336 read with Section 34 IPC against Mukutar Rahman Sahidur Rahman Hafijur Rahman Rafique Ali and Hasibur Rahman. All the accused persons including the present appellants denied the charges and claimed to be tried. Prosecution examined 10 witnesses to substantiate the charges against the appellants. Upon completion of the prosecution evidence the accused persons were examined u s 313 CrPC wherein all of them took the plea of innocence and examined one witness in their defence. 5. Lutfur Rahman the informant was examined as PW 1. He deposed that on 19 06 2009 at about 4.30 PM the accused Mukutar Sahidur Hafizur Saidur Hasibur Jahidur Rafique Adilur and Kasem entered into the residential campus of the deceased and started cutting bamboos and they also pelted stone at the house of PW 1. He also stated that the accused Sahidur Hasibur and Rafique chased him and he had fled the scene out of fear. According to him when he came back after about an hour he had found his father lying dead in the house of Mukut and by that time all the accused persons had left the place of occurrence. 6. The PW 2 Azizur Rahman deposed that on 19 06 2009 at about 2.30 PM accused Mukutar Rahmanasked for demarcation of the land. He further stated that accused Sahidur Hafizur Saidur Adilur Jehidur Hasibur Sarif Rafique and Abdur @ Kasem entered into their campus and started cutting bamboos and Mukutar pelted stone at their house. When his elder brother Lutfur was fleeing from the house out of fear accused Sahidur and Hasibur chased him and Mukutar stabbed into the abdomen of his brother Motibur with a spear. He also stated that Hafijur Sahidur and Mukutar inflicted fracture injury on the leg of his fatherby means of a crowbar and axe and also plucked his right eye. He further stated that when he tried to flee the scene having been chased by the accused persons Hafizur intercepted him and fell him into a pond. He also stated that the accused persons tied the deceased with a mango tree. However during cross examination he stated that his father and brother were lying on the ground and the accused persons did not tie Page No.# 4 13 7. PW 3 Motibur Rahman was also an injured witness. He deposed that at about 2 2.30 PM accused Mukutar asked him to come out of the house and rest of the accused persons viz. Hafizur Saidur Kasem Sarif Jahirul Adilur and Hasibur started cutting bamboos. He also stated that the accused persons entered his house Mukutar hit on his stomach with a pointed object like spear and Hafizur dragged him from the house. He further stated that Mukutar stabbed his fatherwith a “shul” and Hafijur inflicted a fracture injury on his leg with a crowbar. During cross examination he admitted that he did not see PW 2 being assaulted nor had he seen the incident of assault which took place inside the house of the 8. PW 4 Marzina Begum is the wife of the deceased Habibur Rahman. She deposed that on the day of occurrence at about 3 PM when they were taking meal accused Mukutar since deceased) came and asked them to demarcate the land and started pelting stone to their house. She further stated that the accused persons entered into their land and started cutting bamboos. According to her accused Mukutar stabbed Motibur with a spear and dragged him to his courtyard. Thereafter rest of the accused persons came and assaulted her husbandby means of a “shul” and dragged him to the courtyard of Mukutar She also deposed that the accused persons stabbed in the eye of her father in law by means of a crowbar and inflicted fracture injury on his legs by means of a rod. She also stated that when her husband Dhan tried to run away from the house Hafijur caught and fell him into a pond Sarif dealt a blow on hishead and accused Mukutar inflicted cut injury on his Page No.# 5 13 10. PW 8 is the daughter of the deceased. According to her she was not an eye witness to the occurrence. She came later having come to know about the occurrence and had seen Motibur and his father in injured state and immediately after his arrival her father expired She also stated to have seen a pierced injury in one of the eyes of her father. 11. PW 5 was a witness to the seizure list. He came to the house of the deceased at about 4 O’clock and had seen Habibur Rahman lying dead in the courtyard. According to him inquest on the body was held in his presence and he put his signature in the inquest report Ext. 4). 12. PW 6 was Dr. Basudev Malakar who examined the injured Azizur Rahman @ Dhan PW 2) and Motibur Rahmancame to the police station and informed verbally that a fight had taken place between her husband and father in law and the brothers of her father in law. She also informed that her husband as well as her father in law and brother in law sustained grievous injuries. On the basis of the said information he made GD Entry No. 317 dated 19 06 2009 and proceeded to the place of occurrence. He also proved the GD Entry No. 317 dated 19 06 2009 as Ext. 7. According to him upon arrival at the place occurrence he drew a sketch map of the place of occurrence held inquest on the body of the deceased and examined the witnesses who were found available at the place of occurrence. He also stated to have found accused Mukutar Rahman Sahidur Rahman and Abdur Rahman in injured state and sent them to hospital for treatment. Thereafter a written Ejahar was filed by Lutfur Rahman on 20 05 2009 on the basis of which he registered the case. He also stated to have seized some incriminating articles viz. one stick made of bamboo two broken pieces of bricks and five pieces of stones in presence of the witnesses. In the meantime he was transferred and therefore handed over the case diary to his successor. He has stated during cross examination that on 19 06 2009 one Sahina Begum also lodged an Ejahar in connection with the same incident and a cross case was registered vide Kaki PS Case No 35 2009 u s 447 325 34 IPC. He also proved the previous statement of PW 7 and PW 8 recorded u s 161 CrPC. 16. The appellant also examined one Nasir Uddinas defence witness. He deposed that there was long standing dispute between both the parties and a village meeting was held on the day of occurrence at about 12 O’Clock. However the dispute could not be resolved in the village meeting as the elder brother of the deceased Habibur Rahman was reluctant to abide by the decision of the village meeting. According to him he had no knowledge as to what had happened after the village meeting. 17. Appreciating the above evidence brought on record the learned trial court convicted the appellants u s 302 IPC. However the learned trial court acquitted all the accused persons of the charges u s 147 148 447 326 IPC. 18. Assailing the impugned judgment learned counsel for the appellant Mr. A.I. Uddin submitted that no charge u s 302 IPC was framed against the appellant Saidur Rahman and Page No.# 7 13 as such conviction of the appellant Saidur Rahman u s 302 IPC was illegal and improper. Mr Uddin further contended that though charge was framed u s 302 with the aid of section 34 IPC against five accused persons including the appellants learned trial court convicted the three appellants u s 302 simplicitor. As such conviction and sentence against the appellants was illegal and improper. 19. Learned Addl. Public Prosecutor Mr. Phukan submitted that when charge is framed u s 302 with the aid of Section 34 IPC the conviction u s 302 simplicitor is permissible in the event of failure of the prosecution to establish the common intention if the evidence on record establishes the substantive offence. 20. We have considered the submission made by the learned counsel and also perused the evidence and materials brought on record. 21. As already indicated above charges were framed against all the accused persons including the present appellants under various penal provision. However all the accused persons including the appellants were exonerated from all other accusation of which charges were framed except for the charge u s 302 IPC for which a separate charge u s 302 read with section 34 IPC was framed against five of the accused persons viz. Hafijur Rahman Sahidur Rahman Hasibur Rahman Rafique Ali and Mukutar Rahman. But no charge was framed u s 302 IPC against the appellant Saidur. Accused Mukutar Rahman died during trial and the learned trial court convicted the present appellants u s 302 IPC despite the fact that no charge u s 302 IPC was framed against the appellant Saidur Rahman. Therefore the contention of the learned counsel for the appellants is that conviction of the appellant Saidur Rahman u s 302 IPC was vitiated for not framing charge. As such his conviction is liable to be set aside on this count alone inasmuch as he could not have been convicted u s 302 IPC without framing a charge submits Mr. Uddin. 22. The law with regard to the consequence of defect in farming of charge or omission to frame charge is no longer res integra. It is the settled position that non framing of charge or mere defect in framing of charge per se does not vitiate the trial in view of the provision contained in Section 215 221 and 222 of the CRPC which take care of the situation arising out of omission or defect in framing of charge. Page No.# 8 13 23. In Rafique Ahmed Vs. State of U.P. AIR 20113114 the Supreme Court observed that non framing of charge per se will not vitiate the trial itself. The same will have to be examined in the facts and circumstances of the case. Thus in a case where charge was framed for the offence of dacoity with murder under Section 396 IPC the accused can be convicted under Section 302 IPC without being specifically charged because the offence of murder will have to be read in to the provision of Section 396 IPC qua the doctrine of “legislation by incorporation.” 24. In K. Prema S. Rao & Anr. Vs. Yadla Srinivasa Rao & Ors. 1 SCC 217 the Supreme Court observed that mere omission or defect in framing the charge does not disable the court from convicting the accused for the offence which is found to have been proved on the evidence on record. The provision of Section 221 CrPC take care of such situation and safeguard the power of the criminal court to convict an accused for an offence with which he is not charged although on facts found in evidence he could have been charged for such 25. The Apex Court in Jaswantrai Manilal Akhaney Vs. State of Bombay AIR 1956Slaney Vs. State of U.P. AIR 1956116 : 1956 Crl. L J. 291. In the said case two brothers were put up for trial on the charge under section 302 IPC read with section 34 IPC. Upon appreciation of evidence learned trial court found that only one of them struck the fatal blow and accordingly he was convicted u s 302 IPC and the other was acquitted. High Court upheld the conviction and the matter landed in Supreme Page No.# 9 13 Court. The question before the Supreme Court was whether the omission to frame an alternative charge under section 302 IPC simplicitor was illegal that vitiated the trial. The Supreme Court having considered the conflicting decision on the matter held that omission to frame an alternative charge u s 302 IPC simplicitor in the facts and circumstances of the case was not an illegality that vitiate the trial but was a curable irregularity as it had not occasioned any prejudice to appellants and accordingly conviction and sentence of the appellants u s 302 IPC simplicitor was not interfered. 27. The pertinent question therefore is whether the defect in framing of charge or omission to frame charge has caused prejudice to the accused. It goes without saying that the basic object and purpose of framing charge is to enable the accused to know the accusation against him and to prepare his defence. Therefore charge is basically a notice of the specific accusation against an accused which he is required to meet. As such the principle of natural justice and the right of fair trial demands that the accused should know the accusation and charge brought against him. Unless the accused has the knowledge of the charge he is required to meet he may not be able to prepare his defence properly and in that event the accused may be prejudiced for being deprived of preparing his defence. It must also be borne in mind that prejudice is a question of fact which is required to be proved like any other facts. Therefore whether an accused has been prejudiced for any defect in framing of charge or for non framing of charge would depend on the facts of a particular 28. In the instant case the appellant Saidur was exonerated from all the accusation of which charges were framed. However he was convicted only u s 302 IPC of which no charge was framed against him. As such necessarily he did not have any notice or knowledge that he was also being tried for an offence of murder. There may be a case where a distinctly separate offence is included in the charge of another offence for example section 396 IPC which provides punishment for dacoity with murder. In case of an offence u s 396 IPC which combined two offences i.e. dacoity and murder when charge is framed u s 396 IPC a person may be convicted under Section 302 IPC if evidence brought on record establishes the charge u s 302 IPC even in absence of separate charge u s 302 IPC reason being that in such case accused has the notice or knowledge that he was being tried both for dacoity and Page No.# 10 13 murder as section 396 IPC combines both the offencestabbed in the ear of Habibur Rahman(deceased) with a “shul” and accused Hafijur Sahidur Saidur and Mukutar inflicted fracture injury on the leg of Habibur Rahman by means of a crowbar and axe and they also plucked hisright eye by means of crowbar. Though the testimony of this witness with regard to plucking of an eye of the deceased seems to be exaggerated embellishment for not being supported by other evidence including inquest report as well as the medical evidence his testimony to the effect that the appellants inflicted injury on the leg of the deceased causing fracture of tibia and fibula remained unimpeached. PW 3 also stated that Mukutar stabbed his father with a “shul” and also inflicted fracture injury on the leg of this fatherby means of a crowbar. PW 4 deposed that the accused persons assaulted her husband and dragged him to the courtyard of Mukutar. Though PW 4 did not mention the name of the appellants specifically she also stated that all the accused persons assaulted her husband. PW 7 another eye witness to the occurrence also deposed that the accused persons inflicted injury and caused fracture on the leg of the deceased with a rod. 33. From the above evidence it is abundantly clear that the accused appellants Hafijur Sahidur and Saidur inflicted injury on the leg of the deceased and the testimony of the ocular witnesses also finds support from the medical evidence which shows that the deceased sustained “fracture of shaft of right tibia and fibula above ankle joint and fracture of tibia and fibula at shaft of left side”. We also take note of that none of the ocular witness deposed that the fatal injury on the head which ultimately caused the death of the deceased was inflicted by the present appellants. 34. Though PW 2 has stated that the injury on the leg was inflicted by axe and crowbar and PW 7 deposed that the injury on the leg of the deceased was caused by rod neither any rod nor any axe was seized by police. It is in the evidence of the investigating officer that Page No.# 13 13 immediately after the occurrence wife of the PW 3 informed him verbally about the occurrence and pursuant to such information he arrived at the place of occurrence and seized one stick made of “Jati bah” a pointed stick of bamboo two pieces of broken bricks and five number of stones. Therefore although prosecution witnesses have deposed that the injuries on the leg of the deceased was caused by axe rod crowbar and stick etc. in absence of specific evidence as to which of the weapon was used and in the face of clear medical evidence that no incised wound was found on the body of the deceased coupled with the facts that except stick made of bamboo as well as stones and broken bricks no other weapon was seized by the police who arrived the scene immediately after the occurrence it cannot be said for certain that injury on the leg of the deceased was caused by any dangerous weapon of offence. It is however abundantly clear from the medical evidence that the injury was inflicted by a blunt object. Therefore in the facts and circumstances of the case we are of the considered view that the appellants would be liable only u s 325 IPC for causing grievous hurt to the deceased Habibur Rahman. 35. In the teeth of the above discussions we set aside the conviction of the appellants u s 302 IPC instead convict them u s 325 IPC and sentence them to undergo rigorous imprisonment for 5 years and to pay fine of Rs. 1 000 each in default they will undergo 36. With the modification and alteration to the extent indicated above the appeal stands simple imprisonment for 15 days. partly allowed. 37. Send back the LCR. JUDGE JUDGE 

Summary: Failure to state an offence in all the person is culpable to, regardless of its inclusion in the charging documents, would not exclude the courts from convicting them of the actual offence that is contained on the record of proof. The judgment was passed by The High of Court Gauhati in the case of Hafizur Rahman and Ors Vs The State of Assam and Anr [Crl.A./397/2019] by Division Bench consisting of Hon’ble Shri Justice Suman Shyam &amp; Mir Alfaz Ali. The facts consisting of nine accused persons named in the FIR entered into the land possessed by the deceased and started cutting bamboos and accused Mukutar (since deceased) pelted stone at the house of the informant. and also demolished the dwelling house. The deceased succumbed to the injuries at the spot. Lutfur Rahman lodged the FIR u/s 147/148/149/447/302/326/336/302/427 IPC and upon completion of investigation submitted a charge-sheet against nine accused persons including the present appellants. Learned counsel for the appellant submitted that no charge u/s 302 IPC was framed against the appellant Saidur Rahman, and as such, a conviction of the appellant Saidur Rahman u/s 302 IPC was illegal and improper. He further contended that though, the charge was framed u/s 302 with the aid of section 34 IPC against five accused persons including the appellants, the learned trial court convicted the three appellants u/s 302 simpliciter. As such, conviction and sentence against the appellants was illegal and improper. The Learned Counsel on the corollary submitted that when a charge is framed u/s 302 with the aid of Section 34 IPC, the conviction u/s 302 simpliciter is permissible, in the event of failure of the prosecution to establish the common intention, if the evidence on record establishes the substantive offence. The Court relied on The Apex Court Judgement K. Prema S. Rao &amp; Anr. – Vs. Yadla Srinivasa Rao &amp; Ors, wherein “it was submitted that mere omission or defect in framing the charge does not disable the court from convicting the accused of the offence which is found to have been proved on the evidence on record. The provision of Section 221 CrPC take care of such situation and safeguard the power of the criminal court to convict an accused for an offence with which he is not charged although, on facts found in evidence, he could have been charged for such offence.”