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Wednesday, October 31, 2018

Even assuming that the prosecutrix was of easy virtue, she has a right of refuse to submit herself to sexual intercourse to anyone. The 29 judgment of the High Court reversing the verdict of conviction under Section 376(2)(g) recorded by the trial court cannot be sustained and is liable to be set aside. For the conviction under Section 376(2)(g) IPC, the accused shall be punished with rigorous imprisonment for a term which shall not be less than ten years, but which may be extended to imprisonment for life. After the amendment by Act 13 of 2013 (with retrospective effect from 03.02.2013), the minimum sentence of ten years was increased to twenty years as per Section 376-D and in the case of conviction, the court has no discretion but to impose the sentence of minimum twenty years. However, prior to amendment, proviso to Section 376(2) IPC provided a discretion to the court that “the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than ten years.” Though the court is vested with the discretion, in the facts and circumstances of the case, we are not inclined to exercise our discretion in reducing the sentence of imprisonment of ten years imposed upon the respondents-accused. In the result, the impugned judgment of the High Court is set aside and the appeal preferred by the State is allowed. The verdict of conviction of accused-respondent Nos.1 to 4 (CA No.2299/2009) 30 under Section 376(2)(g) IPC and also the sentence of imprisonment of ten years imposed upon them is affirmed. The respondentsaccused Nos.1 to 4 shall surrender themselves within a period of four weeks from today to serve the remaining sentence, failing which they shall be taken into custody.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.2299 OF 2009
STATE (GOVT. OF NCT OF DELHI) ….Appellant
VERSUS
PANKAJ CHAUDHARY AND ORS. ….Respondents
With
CRIMINAL APPEAL NO.2298 OF 2009
J U D G M E N T
R. BANUMATHI, J.
These appeals arise out of the judgment dated 05.05.2009
passed by the High Court of Delhi in Criminal Appeal No.384 of
2000 in and by which the High Court allowed the appeal filed by the
respondents/accused thereby setting aside their conviction under
Section 376(2)(g) IPC passed by the trial court and the sentence of
imprisonment imposed upon them. By the impugned judgment, the
High Court also issued direction to lodge a complaint against the
appellants-police officials (CA No.2298/2009) for prosecuting them
under Sections 193 and 195 IPC.
1
2. Case of prosecution is that the accused/respondents who
were living in the neighbourhood of the prosecutrix (PW-1) at
Shaheed Bhagat Singh Jhuggi Camp, Katwaria Sarai, entered her
jhuggi at about 09.00 PM on 28.07.1997 and demanded a bidi from
her. She refused to give them any bidi. Thereafter, they demanded
water which she again refused. The prosecutrix has alleged that
thereafter respondents/accused switched off the electricity and
accused/respondent No.2 Gunjesh Chaudhary caught hold of her
hands and the other three accused had torn her clothes and
committed rape on her in turn. The prosecutrix has alleged that she
raised an alarm and fell unconscious thereafter. On hearing the
alarm, Bashira Khatoon, mother of the prosecutrix (PW-3) came
there and saw the four accused/respondents coming out of the
jhuggi. Bashira Khatoon (PW-3) found the prosecutrix lying
unconscious inside the jhuggi. Police Control Room (PCR) van took
the prosecutrix to All India Institute of Medical Sciences (AIIMS)
hospital. At about 11.45 PM, the prosecutrix was medically
examined by Dr. Monika and it was noted in MLC (Ex.-PW6/A) that
there were "bruises of 4 x 4 cm on medial aspects of both thighs of
the prosecutrix". The blouse of the prosecutrix was found torn in the
back side along the left sleeve.
2
3. At about 09.30 PM, information was received in the Police
Station, Hauz Khaz PCR/South District regarding some quarrel at
Shaheed Bhagat Singh Jhuggi. SI Jai Bhagwan (PW-7) along with
Constable Khushi Ram (PW-4) reached the spot and learnt that the
prosecutrix was taken to the hospital by a PCR Van. SI Jai
Bhagawan (PW-7) along with the constable went to the AIIMS and
found PW-1 Phoola (Prosecutrix) there. Doctor declared PW-1 fit to
make statement and SI Jai Bhagwan recorded her statement
concerning allegations of rape by the accused/respondents. The
statement of the prosecutrix was recorded at 02.30 AM on
29.07.1997 and ruqqa for registration of the case under Section 376
IPC was sent at 02.50 AM. A case under FIR No.559/97 under
Section 376 IPC read with Section 34 IPC was registered at 03.15
AM on 29.07.1997.
4. On the date of incident i.e. 28.07.1997 at about 11.45 PM, the
prosecutrix was medically examined by Dr. Monika. It was noted in
the MLC (Ex.-PW6/A) that there were bruises of 4 cm x 4 cm on the
medial aspects of both the thighs of the prosecutrix. The blouse was
torn along the back of the left sleeve and at the time of preparing
the MLC (Ex.-PW6/A); the clothes of prosecutrix could not be
sealed since she did not have spare clothes. Later her petticoat
3
was collected and sent for chemical examination. Upon completion
of investigation, charge sheet was filed against the
accused/respondents.
5. Charges were framed against the accused/respondents under
Section 376(2)(g) IPC to which they pleaded not guilty. To bring
home the guilt of the accused, the prosecution examined seven
witnesses and exhibited number of documents. The
accused/respondents in their statement under Section 313 Cr.P.C.
stated that PW-1-Prosecutrix was of bad character
and she was indulging in prostitution and they have lodged
complaint against her and therefore, they have been falsely
implicated in the rape case.
6. Upon consideration of evidence of PW-1-Prosecutrix and
medical report, forensic report and other evidence, the trial court
convicted accused/respondents under Section 376(2)(g) IPC and
sentenced each of them to undergo rigorous imprisonment for ten
years. Being aggrieved, the accused/respondents filed appeal
before the High Court. In the High Court, the accused/respondents
filed petition under Section 391 Cr.P.C. for taking additional
evidence which was allowed by the High Court. The High Court by
the impugned judgment allowed the appeal by setting aside the
4
conviction of the accused/respondents under Section 376(2)(g) IPC.
The High Court held that regarding the ladies quarrel at 07.30 p.m.
on 28.07.1997 involving sex workers including the prosecutrix at
Shaheed Bhagat Singh Jhuggi, FIR No.558/97 was registered and
in connection with the said FIR No.558/97, the prosecutrix and other
ladies were arrested and that they were in custody with the police till
at least 09.30 PM. The High Court therefore doubted the
prosecution case in FIR No.559/97 and held that when the
prosecutrix and other ladies were in custody with the police between
08.50 PM till 10.00 PM on 28.07.1997, it is quite impossible that the
occurrence of rape would have taken place at 09.00 PM on
28.07.1997 as alleged by the prosecutrix.
7. Based upon the Report of Joint Commissioner (Ex.-DW6/A)
and the Report of DCP, the High court directed the Registrar
General of the High Court to make a complaint against SI Jai
Bhagwan (PW-7), SI Prem Chand (DW-3) and Head Constable
Sagar Chand (DW-5) before the concerned court for prosecution for
the offences under Sections 193 and 195 IPC. Being aggrieved by
the remarks made against them and also the direction to lodge a
complaint to initiate prosecution against them, SI Jai Bhagwan (PW5
7), SI Prem Chand (DW-3) and Head Constable Sagar Chand (DW5)
have preferred Criminal Appeal No.2298 of 2009.
8. The learned Additional Solicitor General Mr. Vikaramjit
Banerjee appearing on behalf of appellant Govt. of NCT of Delhi
has submitted that the High Court has failed to appreciate the
evidence of PW-1-Prosecutrix which is corroborated by the medical
evidence and the High Court erred in relying upon the events in FIR
No.558/97 and erred in acquitting the respondents/accused. The
learned Additional Solicitor General further submitted that the High
Court erred in relying upon the report of the Joint Commissioner
(Ex.-DW6/A) and other materials produced at the time of arguments
and the High Court ought not to have proceeded on presumption
and conjectures and erred in not appreciating the evidence and
materials placed on record.
9. The learned senior counsel Mr. Mukul Gupta and Mr. Sanjay
R. Hegde appearing for the appellants-police have taken us through
the evidence and other materials and submitted that the police
officials have correctly investigated the case and without giving an
opportunity of hearing, the High Court was not right in passing
disparaging remarks against the police officials and issuing
directions to lodge a complaint against the appellants-police officials
6
to initiate the prosecution under Sections 193 and 195 IPC which
have very serious consequences and impact on their official career.
10. Though the accused initially engaged a lawyer, in later
hearings of the appeal, they were not represented. Mr. Praveen
Chatruvedi was nominated as the counsel for the respondents
through Supreme Court Legal Services Committee who made
meticulous submissions. Contention of the respondents/accused is
that PW-1-Prosecutrix was in custody of police between 08.50 PM
to 10.00 PM on 28.07.1997 in connection with FIR No.558/97 under
Section 160 IPC and therefore, the alleged offence of gang rape
(FIR No.559/97) could not have been committed by the
respondents/accused in the manner alleged. It is the contention of
the respondents/accused that the police and prosecutrix have
conspired a plot of false rape case implicating the respondents and
the High Court rightly acquitted the accused/respondents and
directed to initiate action against the police.
11. We have carefully considered the submissions of the
respondents/accused and also the appellant/police officials and
perused the impugned judgment and materials on record.
12. PW-1-Prosecutrix has spoken about the occurrence of rape
committed on her that accused/respondent No.2-Gunjesh
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Chaudhary caught hold of her hands and that other three accused
namely Pankaj Chaudhary, Qasim and Jai Lal Yadav had torn her
blouse and committed rape on her and that she raised alarm and
then her mother came there and the accused persons ran away.
Upon consideration of evidence of the prosecutrix, the trial court
held that there is no reason to disbelieve the statement of
prosecutrix where it is sufficiently corroborated by the statement of
Bashira Khatoon, mother of prosecutrix (PW-3) who saw the
accused leaving the jhuggi and identified two of them in the court.
13. Evidence of the prosecutrix is corroborated by the MLC
(Ex.-PW6/A). Dr. Monika who examined the prosecutrix noted in
MLC (Ex-PW6/A) that “the blouse of the prosecutrix was found to
be torn along the back of the left sleeve and bruises measuring 4 ×
4 cm were found on her both thighs”.
14. Contention of the respondents is that when the prosecutrix
was forcibly held by the accused and gang raped, in all probability,
the prosecutrix must have sustained external injuries and absence
of external injuries raises serious doubts about the prosecution
version. The submission of the accused/respondents that the
prosecutrix was not injured, was belied by the presence of bruises
measuring 4 × 4 cm on the medial aspects of both the thighs. The
8
blouse was torn along the back of left sleeve and such injuries were
possible by use of force. Further, the version of the prosecutrix is
corroborated by MLC(Ex.-PW6/A) and that the injuries found could
be possible by use of force. In any event, absence of external
injuries does not tantamount to consent nor does it discredit the
version of prosecutrix.
15. The evidence of the prosecutrix is also corroborated by FSL
Report (Ex.-PW7/G) which shows presence of human semen (Ex.-
1) on the petticoat of the prosecutrix. As per the FSL Report (Ex.-
PW7/G), blood was detected on Exhibits 3S1 (gauze cloth piece
having brown stains labelled ‘Pankaj’); 3S2 (gauze cloth piece
having brown stains labelled ‘Qasim’); and 3S3 (gauze cloth piece
having brown stains labelled ‘Jai Lal’). The result of the biological
report reads as under:-
Exhibits Species
of Origin
ABO Group
Remarks
3S1 (gauze cloth piece having brown
stains labelled ‘Pankaj’)
Inconclusive
3S2 (gauze cloth piece having brown
stains labelled ‘Qasim’)
Inconclusive
3S3 (gauze cloth piece having brown
stains labelled ‘Jai Lal’)
‘B’ Group
Semen Status (Ex.-1-petticoat of the
prosecutrix)
‘B’ Group
The presence of semen status of ‘B’ group on the petticoat of the
prosecutrix which matches with the blood ‘B’ group of accused Jai
9
Lal (3S3) corroborates the version of the prosecutrix. Of course, the
Serology Report on Exhibits 3S1 (gauze cloth piece having brown
stains labelled ‘Pankaj’); 3S2 (gauze cloth piece having brown
stains labelled ‘Qasim’) remained inconclusive; probably due to
disintegration of the sample. Such disintegration of the sample
does not dilute the version of the prosecutrix.
16. The FSL Report (Ex.-PW7/G) was discarded by the High
Court primarily on the ground that in MLC (Ex.-PW6/A), it is stated
that “the clothes could not be sealed as patient does not have extra
clothes” which according to the High Court was inconsistent with the
statement of SI Jai Bhagwan (PW-7) that “Duty Constable of the
hospital produced before me two sealed parcels containing
petticoat and slides which was sent to the FSL”. It is pertinent to
note that the prosecutrix was examined by the doctor at 11.45 PM
on 28.07.1997; whereas SI Jai Bhagwan (PW-7) after getting
statement from the doctor as to the fit mental state of prosecutrix
has recorded the statement of the prosecutrix at 02.30 AM on
29.07.1997. In her evidence during cross-examination, the
prosecutrix has stated that the petticoat that she was wearing at the
time of incident was seized by the police. Having regard to the
10
evidence of the prosecutrix, we find no inconsistency between MLC
(Ex.-PW6/A) and the statement of SI Jai Bhagwan (PW-7).
17. Drawing our attention to the evidence of prosecutrix who
submitted that the prosecutrix regained consciousness only at 10.00
AM on 29.07.1997 and while so SI Jai Bhagwan could not have
recorded her statement at around 02.30 AM on 29.07.1997 as
stated by him and this again throws serious doubt about the
prosecution case. The prosecutrix (PW-1) was examined in the
court on 05.11.1999 nearly two years after the occurrence and she
might not have been able to recollect the happenings as it is. It is
also pertinent to note that SI Jai Bhagwan (PW-7) has enquired the
Doctor and the Doctor has declared that prosecutrix was fit to make
the statement and only thereafter the statement of prosecutrix (PW1)
was recorded (Ex.-PW1/A). In the light of the evidence
of SI Jai Bhagwan that the Doctor declared the prosecutrix fit to
make the statement, there is no merit in the contention of the
accused raising doubts about the recording of statement of the
prosecutrix at 02.30 AM on 29.07.1997.
18. On the next day i.e., on 29-07-1997 all the
accused/respondents were arrested by SI Jai Bhagwan (PW-7) and
they were medically examined in the hospital between 11.36 AM to
11
11.38 AM and the doctor opined that “on clinical examination, there
is nothing to suggest that the said accused persons are incapable
of performing sexual intercourse”. The blood samples and the slide
of smear of the accused were also seized and the case property
was deposited in the malkhana from where it was sent to FSL. As
pointed out earlier, the FSL Report (Ex.-PW7/G) showed that the
semen stains were found on the petticoat of the prosecutrix (B
group) which matched with the blood group of the
accused/respondent No.4-Jai Lal Yadav.
19. It is also relevant to refer to the false explanation of the
accused in their statement under Section 313 Cr.P.C. Though the
accused have admitted about their medical examination, in their
statement under Section 313 Cr.P.C. all the accused have given a
false version regarding the manner and time of arrest as after 04.00
PM on 29.07.1997. The statement of the accused that they were
arrested only after 04.00 PM on 29.07.1997 is not consistent with
the materials placed on record that they were medically examined
between 11.36 AM to 11.38 AM on 29.07.1997. The false
explanation by the accused is yet another militating circumstance
against them.
12
20. Further, as pointed out by the trial court, the prosecutrix had
no motive to falsely implicate the accused. In their statement under
Section 313 Cr.P.C., the respondents/accused have stated that the
prosecutrix was of bad character and she was indulging in
prostitution regarding which they have lodged complaint against her
and they have been falsely implicated in the case. As pointed out
by the trial court, nothing was brought on record by the accused to
show that they have lodged complaint against the prosecutrix.
Mahanand Jha (DW-1) stated that he is the President of the jhuggi
area. He further stated that about 7-8 women including the
prosecutrix have been indulging in prostitution regarding which he
has lodged the complaint. There is nothing on record to suggest
that the accused were in any way involved in making such
complaints against the prosecutrix and other women. The version
that they lodged complaint against the prosecutrix and therefore,
they have been falsely implicated in the case, is not substantiated
by any record.
21. The High Court observed that the trial court erred in saying
that the accused failed to prove the making of previous complaints
against the prosecutrix. While saying so, the High Court referred to
certain complaints made against the prosecutrix including the one
13
allegedly given on 21.07.1997 which were produced by the Bar at
the time of arguments. The power conferred under Section 391
Cr.P.C. is to be exercised with great care and caution. In dealing
with any appeal, the appellate court can refer to the additional
evidence only if the same has been recorded as provided under
Section 391 Cr.P.C. Any material produced before the appellate
court to fill-up the gaps by either side cannot be considered by the
appellate court; more so, to reverse the judgment of the trial court.
As rightly contended by the learned Additional Solicitor General, the
High Court has taken into consideration the materials produced by
the Bar, namely, complaints allegedly made against the prosecutrix
and other women including the one allegedly given on 21.07.1997
just one week prior to the incident. The High Court was not right in
taking into consideration those complaints produced at the time of
arguments in the appeal.
22. As rightly held by the trial court that even if the allegations of
the accused that the prosecutrix is of immoral character are taken to
be correct, the same does not give any right to the accused persons
to commit rape on her against her consent. In State of
Maharashtra and Another v. Madhurkar Narayan Mardikar
(1991) 1 SCC 57, it was held that even a woman of easy virtue is
14
entitled to privacy and it is not open to any person to violate her and
she is equally entitled to protection of law. Further, the evidence of
such a woman cannot be thrown overboard merely because she is
a woman of easy virtue.
23. Even in cases where there is some material to show that the
victim was habituated to sexual intercourse, no inference like the
victim being a woman of ‘loose moral character” is permissible to be
drawn from that circumstance alone. A woman of easy virtue also
could not be raped by a person for that reason. In State of Punjab
v. Gurmeet Singh and Others (1996) 2 SCC 384, it was held as
under:-
“16. ……Even if the prosecutrix, in a given case, has been
promiscuous in her sexual behaviour earlier, she has a right to
refuse to submit herself to sexual intercourse to anyone and
everyone because she is not a vulnerable object or prey for being
sexually assaulted by anyone and everyone……”(Emphasis
supplied) [Underlining added].
While so, the High Court erred in placing reliance upon the
complaints allegedly made against the prosecutrix to doubt her
version and to hold that a false case has been foisted against the
accused.
24. It is now well-settled principle of law that conviction can be
sustained on the sole testimony of the prosecutrix if it inspires
confidence. [Vishnu alias Undrya v. State of Maharashtra (2006)
15
1 SCC 283]. It is well-settled by a catena of decisions of this Court
that there is no rule of law or practice that the evidence of the
prosecutrix cannot be relied upon without corroboration and as such
it has been laid down that corroboration is not a sine qua non for
conviction in a rape case. If the evidence of the victim does not
suffer from any basic infirmity and the ‘probabilities factor’ does not
render it unworthy of credence, as a general rule, there is no reason
to insist on corroboration except from medical evidence, where,
having regard to the circumstances of the case, medical evidence
can be expected to be forthcoming. [State v. N.K. The accused
(2000) 5 SCC 30]
25. The trial court which had the opportunity of seeing and
observing the prosecutrix, found the testimony of the prosecutrix
reliable being corroborated by her mother’s evidence, medical
evidence, FSL report and other circumstances viz. absence of
motive for any false implication etc. While so, the High Court ought
not to have heavily interfered with the verdict of conviction based on
the alleged time gap in the registration of two FIRs and other
aspects of investigation in connection with FIR No.558/97 to reverse
the verdict of conviction.
16
26. The High Court reversed the verdict of conviction mainly on
the ground of difference of timing in the registration of FIR
No.558/97 and other aspects of investigation. At about 08.05 PM, a
telephonic information was received vide DD No.67-B at Police
Station Hauz Khas regarding a quarrel at Shaheed Bhagat Singh
Jhuggi. The specific case of the defence is that the prosecutrix was
in police custody in FIR No.558/97 under Section 160 IPC till about
10.00 PM. As per the deposition of SI Prem Chand (DW-3), he
reached the spot with one lady constable Ms. Sarla Toppo and
Constable Sagar Chandra (DW-5) at around 08:18 PM and found
the ladies including prosecutrix quarrelling at public place in their
jhuggis and immediately arrested the ladies and conducted
investigation and sent the ruqqa with a constable to register the FIR
under Section 160 IPC. On receipt of information, FIR No.558/97 at
Police Station Hauz Khas was registered at 09.20 PM on
28.07.1997. SI Prem Chand (DW-3) stated about the arrest and
search of four women and then released them on bail bonds and he
was on the spot up to 08:50 PM.
27. The High Court relied on the statement of Head Constable
Ratan Lal (DW-4) that SI Prem Chand (DW-3) has made a
telephonic call at 08:52 PM to know the serial number of the case
17
and because the FIR was registered at 09:20 PM, the High Court
came to the conclusion that the women involved in the FIR
No.558/97 could not have been released before 09:20 PM because
one of the bail bonds contain the said FIR number and also held
that it is highly unlikely for the police to have completed all the steps
referred to above in respect of each of the four women and released
them by 08:52 PM and as per the site plan drawn in FIR No.559/97,
the distance between the road and jhuggi is such that it was
impossible for the prosecutrix to come back alone and be in her
jhuggi at 09.00 PM.
28. The occurrence of rape (FIR No.559/97) was at about
09.00 PM regarding which information was received by the same
Police Station Hauz Khas at about 09.30 PM. SI Jai Bhagwan
(PW-7) along with constable Khushi Ram (PW-4) reached the spot
and learnt that the prosecutrix was taken to hospital by PCR Van.
Thereafter, SI Jai Bhagwan (PW-7) along with constable Khushi
Ram (PW-4) went to AIIMS and found the prosecutrix there and he
recorded her statement at 02.30 AM on 29.07.1997 after getting the
certificate from the doctor. Ruqqa for registration of the case under
Section 376 IPC was sent at 02.50 AM and case under FIR
18
No.559/97 under Section 376 IPC read with Section 34 IPC was
registered at 03.15 AM on 29.07.1997.
29. After referring to the timings of FIR No.558/97, the High Court
held that the quarrelling ladies including the prosecutrix were in
custody of the police at least till 08.50 PM and it was highly
improbable that the prosecutrix could have come back and was
alone in her jhuggi at 09.00 PM on 28.07.1997 and that the
respondents/accused entered her jhuggi and committed rape as
alleged by her and that even before 09.30 PM, she was picked up
from there by PCR Van. The High Court therefore concluded that
SI Jai Bhagwan, constable Khushi Ram (PW-4) and the prosecutrix
(PW-1) have fabricated false case against the accused. In this
regard, the High Court relied upon the Report of Joint
Commissioner dated 07.11.2000 (Ex.-DW6/A) and the Report of
S.K. Gautam, DCP.
30. The reasoning of the High Court that the ladies were arrested
in connection with FIR No.558/97 under Section 160 IPC and that
the ladies must have remained with the custody of police till 09.20
PM proceeds on presumptive footing and surmises. In his evidence,
Mahanand Jha (DW-1) has stated that “the said ladies came back
to the area at 08.30 PM and started abusing the neighbourers”.
19
Likewise, Sharabuddin (DW-2) has stated that “the police released
the said ladies including Phoola (PW-1) and after coming back to
her jhuggi, she started abusing the neighbours. Then, I informed
PCR Van on telephone and PCR Van came and took Phoola……..”.
The High Court failed to appreciate the testimonies of DWs 1 and 2
who have categorically stated that the prosecutrix had come back
and was abusing neighbours. The evidence of DWs 1 and 2 clearly
shows that the prosecutrix was let out by the police at or about
08.20 PM on 28.07.1997. Mere fact that FIR No.558/97 under
Section 160 IPC was registered at 09.20 PM does not indicate that
the prosecutrix and other quarrelling ladies were in the police
custody till 09.30 PM on 28.07.1997 (with respect to the offence in
FIR No.558/97).
31. There were two sets of persons and two sets of officers are
involved in FIR No.558/97 and FIR No.559/97. The aspect
regarding FIR No.558/97 was not put to the witnesses
even before the trial court. Everything was brought about in appeal
as additional evidence in exercise of the power of the appellate
court under Section 391 Cr. P.C. Placing of heavy reliance by the
High Court upon the contents in FIR No.558/97 was not a correct
approach.
20
32. Unfortunately, the High Court was swayed by the
Departmental Enquiry Report (Ext.-DW6/A) prepared by Joint
Commissioner of Police that was brought on record by Constable
Dharamvir Singh (DW-6). Going through the entire report, we
observe that the departmental enquiry was primarily based on the
diary entries and the statements of one complainant Amod Shastri
and statement of ASI Kamal Dev. In the report, Joint
Commissioner of Police, inter-alia concluded that the rape incident
could not have happened at 09.00 PM while SI Prem Chand (DW-3)
indicated that quarrelling ladies including the prosecutrix were
released at 08.50 PM. It is pertinent to note that neither S.K.
Gautam, Deputy Commissioner of Police was examined nor the
said complainant Amod Shastri and ASI Kamal Dev were examined.
Yet the High Court relied on it to come to a conclusion that the rape
incident could not have happened at the alleged time and manner.
33. ASI Kamal Dev who took the prosecutrix to the hospital in
PCR Van is said to have made the statement before the Deputy
Commissioner of Police stating that when he questioned the
prosecutrix, she was conscious and that she told him that she had
been beaten up and has not stated anything about the alleged
incident of rape. In our view, the High Court was not right in placing
21
heavy reliance upon the report of the Joint Commissioner and the
report of Deputy Commissioner who were not examined before the
court.
34. Based upon the report of Joint Commissioner of Police (Ex.-
DW6/A) and the report of S.K. Gautam, DCP, the High Court made
disparaging remarks against the police officials and directed
prosecution against the police under Sections 193 and 195 IPC.
The police officials were neither party nor summoned by the High
Court before making such disparaging remarks and giving directions
against them in the appeal against the conviction. On behalf of the
police officials, it is submitted that the conclusions drawn by the
High Court are based on mere surmises and presumptions. The
High Court further relied on the Departmental Enquiry Report (Ex.-
DW6/A) which was not put to test and the maker of the report was
not examined which therefore has no evidentiary value in the eyes
of law.
35. While passing disparaging remarks against the police officials
and directing prosecution against them, in our considered view, the
High Court has failed to bear in mind the well settled principles of
law that should govern the courts before making disparaging
remarks. Any disparaging remarks and direction to initiate
22
departmental action/prosecution against the persons whose
conduct comes into consideration before the court would have
serious impact on their official career. In S.K. Viswambaran v. E.
Koyakunju and Others (1987) 2 SCC 109, this Court held as
under:-
“9. Stung by the remarks made against him without even a
hearing………….”.
13. We have also to point out a grievous procedural error
committed by the High Court. Even assuming for argument’s sake
that for expunging the remarks against Respondents 2 and 3 the
conduct of the appellant required scrutiny and merited adverse
comment, the principles of natural justice required the High Court to
have issued notice to the appellant and heard him before passing
adverse remarks against him if it was considered necessary. By its
failure the High Court has failed to render elementary justice to the
appellant.
14. ………..In State of U.P. v. Mohd. Naim AIR 1964 SC 703, it was
held as follows:
“If there is one principle of cardinal importance in the
administration of justice, it is this: the proper freedom
and independence of Judges and Magistrates must be
maintained and they must be allowed to perform their
functions freely and fearlessly and without undue
interference by anybody, even by this Court. At the
same time, it is equally necessary that in expressing
their opinions Judges and Magistrates must be guided
by considerations of justice, fair play and restraint. It is
not infrequent that sweeping generalisations defeat
the very purpose for which they are made. It has been
judicially recognised that in the matter of making
disparaging remarks against persons or authorities
whose conduct comes into consideration before
courts of law in cases to be decided by them, it is
relevant to consider (a) whether the party whose
conduct is in question is before the court or has an
opportunity of explaining or defending himself; (b)
whether there is evidence on record bearing on that
conduct justifying the remarks; and (c) whether it is
necessary for the decision of the case, as an integral
part thereof, to animadvert on that conduct. It has also
been recognised that judicial pronouncements must
23
be judicial in nature, and should not normally depart
from sobriety, moderation and reserve.”
This ratio has been followed in R.K. Lakshmanan v. A.K. Srinivasan
and Another (1975) 2 SCC 466 and Niranjan Patnaik v.
Sashibhusan Kar and Another (1986) 2 SCC 569 (to which one of
us was a party). Judged in the light of the above tests, it may be
seen that none of the tests is satisfied in this case. It is indeed
regrettable that the High Court should have lightly passed adverse
remarks of a very serious nature affecting the character and
professional competence and integrity of the appellant in purported
desire to render justice to Respondents 2 and 3 in the petition filed
by them for expunction of adverse remarks made against them.”
[Underlining added].
36. In Manish Dixit and Others v. State of Rajasthan (2001) 1
SCC 596, this Court held as under:-
“42. ………Such disparaging remarks and the direction to initiate
departmental action against him could have a very serious impact
on his official career.
43. Even those apart, this Court has repeatedly cautioned that
before any castigating remarks are made by the court against any
person, particularly when such remarks could ensure serious
consequences on the future career of the person concerned, he
should have been given an opportunity of being heard in the matter
in respect of the proposed remarks or strictures. Such an
opportunity is the basic requirement, for, otherwise the offending
remarks would be in violation of the principles of natural justice. In
this case such an opportunity was not given to PW 30 (Devendra
Kumar Sharma). (State of U.P. v. Mohd. Naim AIR 1964 SC 703,
Ch. Jage Ram, Inspector of Police and Another v. Hans Raj Midha
(1972) 1 SCC 181, R.K. Lakshmanan v. A.K. Srinivasan and
Another (1975) 2 SCC 466, Niranjan Patnaik v. Sashibhusan Kar
and Another (1986) 2 SCC 569 and State of Karnataka v. Registrar
General, High Court of Karnataka (2000) 7 SCC 333).”
[Underlining added]
Since the High Court has passed strictures against the police
officials who were involved in the investigation in FIR No.559/1997
without affording an opportunity of hearing to them, the disparaging
remarks are liable to be set aside.
24
37. Insofar as the direction to initiate the prosecution under
Sections 193, 195 and 211 IPC is concerned, Section 340 Cr.P.C.
provides the procedure for offences enumerated in Section 195(1)
(b) Cr.P.C. The object of Section 340 Cr.P.C. is to ascertain
whether any offence affecting administration of justice has been
committed in relation to any document produced or evidence given
in court during the time when the document or evidence was in
custodian legis and whether it is also expedient in the interest of
justice to take such action as required under Section 340 Cr.P.C.
38. Before directing the prosecution to be initiated under Section
195 Cr.P.C., the court has to follow the procedure under Section
340 Cr.P.C. and record a finding that “it is expedient in the
interest of justice……..”. Though wide discretion is given to court
under Section 340 Cr.P.C., the same has to be exercised with care
and caution. To initiate prosecution under Section 195 Cr.P.C too
readily that too against the police officials who were conducting the
investigation may not be a correct approach. Contention of the
learned counsel for the police officials is that before passing the
direction to initiate the prosecution for the offences under Sections
193, 195 and 211 IPC, the High Court ought to have followed the
procedure contemplated under Section 340(1) Cr.P.C.
25
39. Section 340(1) Cr. P.C. reads as under:-
340. Procedure in cases mentioned in Section 195 – (1) When,
upon an application made to it in this behalf or otherwise, any Court
is of opinion that it is expedient in the interests of justice that an
inquiry should be made into any offence referred to in Clause (b) of
sub-section (1) of Section 195, which appears to have been
committed in or in relation to a proceeding in that Court or, as the
case may be, in respect of a document produced or given in
evidence in a proceeding in that Court, such Court may, after such
preliminary inquiry, if any, as it thinks necessary-
(a) record a finding to that effect;
(b) make a complaint thereof in writing;
(c) send it to a Magistrate of the first class having
jurisdiction;
(d) take sufficient security for the appearance of the accused
before such Magistrate, or if the alleged offence is nonbailable
and the Court thinks it necessary so to do, send
the accused in custody to such Magistrate; and
(e) bind over any person to appear and give evidence
before such Magistrate.
There are two preconditions for initiating proceedings under Section
340 Cr. P.C. :
(i) materials produced before the court must make
out a prima-facie case for a complaint for the
purpose of inquiry into an offence referred to in
clause (b)(i) of sub-section (1) of Section 195
Cr.P.C. and
(ii) it is expedient in the interests of justice that an
inquiry should be made into the alleged offence.

40. Observing that the court has to be satisfied as to the primafacie
case for a complaint for the purpose of inquiry into an offence
under Section 195(1)(b) Cr.P.C., this Court in Amarsang Nathaji
as himself and as karta and manager v. Hardik Harshadbhai
Patel and Others (2017) 1 SCC 113 held as under:-
26
“6. The mere fact that a person has made a contradictory
statement in a judicial proceeding is not by itself always sufficient to
justify a prosecution under Sections 199 and 200 of the Penal
Code, 1860 (45 of 1860) (hereinafter referred to as “IPC”); but it
must be shown that the defendant has intentionally given a false
statement at any stage of the judicial proceedings or fabricated
false evidence for the purpose of using the same at any stage of
the judicial proceedings. Even after the above position has
emerged also, still the court has to form an opinion that it is
expedient in the interests of justice to initiate an inquiry into the
offences of false evidence and offences against public justice and
more specifically referred to in Section 340(1) CrPC, having regard
to the overall factual matrix as well as the probable consequences
of such a prosecution. (See K.T.M.S. Mohd. and Another v. Union
of India (1992) 3 SCC 178). The court must be satisfied that such
an inquiry is required in the interests of justice and appropriate in
the facts of the case.
7. In the process of formation of opinion by the court that it is
expedient in the interests of justice that an inquiry should be made
into, the requirement should only be to have a prima facie
satisfaction of the offence which appears to have been committed.
It is open to the court to hold a preliminary inquiry though it is not
mandatory. In case, the court is otherwise in a position to form such
an opinion, that it appears to the court that an offence as referred to
under Section 340 CrPC has been committed, the court may
dispense with the preliminary inquiry. Even after forming an opinion
as to the offence which appears to have been committed also, it is
not mandatory that a complaint should be filed as a matter of
course. (See Pritish v. State of Maharashtra and Others (2002) 1
SCC 253)
8. In Iqbal Singh Marwah and Another v. Meenakshi Marwah and
Another (2005) 4 SCC 370, a Constitution Bench of this Court has
gone into the scope of Section 340 CrPC. Para 23 deals with the
relevant consideration:
“23. In view of the language used in Section 340 CrPC
the court is not bound to make a complaint regarding
commission of an offence referred to in Section 195(1)
(b), as the section is conditioned by the words “court
is of opinion that it is expedient in the interests of
justice”. This shows that such a course will be adopted
only if the interest of justice requires and not in every
case. Before filing of the complaint, the court may hold
a preliminary enquiry and record a finding to the effect
that it is expedient in the interests of justice that
enquiry should be made into any of the offences
referred to in Section 195(1)(b). This expediency will
normally be judged by the court by weighing not the
magnitude of injury suffered by the person affected by
such forgery or forged document, but having regard to
the effect or impact, such commission of offence has
27
upon administration of justice. It is possible that such
forged document or forgery may cause a very serious
or substantial injury to a person in the sense that it
may deprive him of a very valuable property or status
or the like, but such document may be just a piece of
evidence produced or given in evidence in court,
where voluminous evidence may have been adduced
and the effect of such piece of evidence on the broad
concept of administration of justice may be minimal. In
such circumstances, the court may not consider it
expedient in the interest of justice to make a
complaint.”
The same principle was reiterated in Chintamani Malviya v. High
Court of Madhya Pradesh (2018) 6 SCC 151.
41. It has been consistently held by this Court that prosecution for
perjury be sanctioned by the courts only in those cases where
perjury appears to be deliberate and that prosecution ought to be
ordered where it would be expedient in the interest of justice to
punish the delinquent and not merely because there is some
inaccuracy in the statement. In Chajoo Ram v. Radhey Shyam
and Another (1971) 1 SCC 774, this Court held as under:-
“7. The prosecution for perjury should be sanctioned by courts only
in those cases where the perjury appears to be deliberate and
conscious and the conviction is reasonably probable or likely. No
doubt giving of false evidence and filing false affidavits is an evil
which must be effectively curbed with a strong hand but to start
prosecution for perjury too readily and too frequently without due
care and caution and on inconclusive and doubtful material defeats
its very purpose. Prosecution should be ordered when it is
considered expedient in the interests of justice to punish the
delinquent and not merely because there is some inaccuracy in the
statement which may be innocent or immaterial. There must be
prima facie case of deliberate falsehood on a matter of substance
and the court should be satisfied that there is reasonable
foundation for the charge. In the present case we do not think the
material brought to our notice was sufficiently adequate to justify
the conclusion that it is expedient in the interests of justice to file a
28
complaint. The approach of the High Court seems somewhat
mechanical and superficial: it does not reflect the requisite judicial
deliberation….”
42. By perusal of the impugned judgment of the High Court, we
find that the High Court has not recorded a finding that “it is
expedient in the interest of justice to initiate an inquiry into the
offences punishable under Sections 193 and 195 IPC against the
police officials and under Section 211 IPC against the prosecutrix”.
Without affording an opportunity of hearing to the police officials
and based on the materials produced before the appellate court,
the High Court, in our view, was not right in issuing direction to the
Registrar General to lodge a complaint against the police officials
and the said direction is liable to be set aside.
43. The High Court erred in brushing aside the evidence of the
prosecutrix by substituting its views on the basis of submissions
made on the sequence of events in FIR No.558/97 and the report of
the Joint Commissioner of Police (Ex.-DW6/A) and the report of the
Deputy Commissioner of Police. The High Court erred in taking into
consideration the materials produced before the appellate court viz.,
the alleged complaints made against the prosecutrix and other
women alleging that they were engaged in prostitution. Even
assuming that the prosecutrix was of easy virtue, she has a right of
refuse to submit herself to sexual intercourse to anyone. The
29
judgment of the High Court reversing the verdict of conviction under
Section 376(2)(g) recorded by the trial court cannot be sustained
and is liable to be set aside.
44. For the conviction under Section 376(2)(g) IPC, the accused
shall be punished with rigorous imprisonment for a term which shall
not be less than ten years, but which may be extended to
imprisonment for life. After the amendment by Act 13 of 2013 (with
retrospective effect from 03.02.2013), the minimum sentence of ten
years was increased to twenty years as per Section 376-D and in
the case of conviction, the court has no discretion but to impose the
sentence of minimum twenty years. However, prior to amendment,
proviso to Section 376(2) IPC provided a discretion to the court that
“the court may, for adequate and special reasons to be mentioned
in the judgment, impose a sentence of imprisonment for a term of
less than ten years.” Though the court is vested with the discretion,
in the facts and circumstances of the case, we are not inclined to
exercise our discretion in reducing the sentence of imprisonment of
ten years imposed upon the respondents-accused.
45. In the result, the impugned judgment of the High Court is set
aside and the appeal preferred by the State is allowed. The verdict
of conviction of accused-respondent Nos.1 to 4 (CA No.2299/2009)
30
under Section 376(2)(g) IPC and also the sentence of imprisonment
of ten years imposed upon them is affirmed. The respondents accused
Nos.1 to 4 shall surrender themselves within a period of
four weeks from today to serve the remaining sentence, failing
which they shall be taken into custody. We place on record the
valuable assistance rendered by the counsel Mr. Praveen
Chaturvedi who has been nominated by the Supreme Court Legal
Services Committee to argue on behalf of the respondents/accused.
46. The direction of the High Court to lodge complaint against the
police officials (appellants in Criminal Appeal No.2298 of 2009) is
set aside and the appeal preferred by them is allowed.
…………….……………J.
 [R. BANUMATHI]
…………….……………J.
 [INDIRA BANERJEE]
New Delhi;
October 30, 2018
31

Whether the defence is acceptable or not and whether it is compatible or incompatible with the evidence available is an entirely different matter. If there has been no consideration at all of the defence taken under Section 313 Cr.P.C., in the given facts of a case, the conviction may well stand vitiated. To our mind, a solemn duty is cast on the court in dispensation of justice to adequately consider the defence of the accused taken under Section 313 Cr.P.C. and to either accept or reject the same for reasons specified in writing. Unfortunately neither Trial Court nor the High Court considered it necessary to take notice of, much less discuss or observe with regard to the aforesaid defence by the appellant under Section 313 Cr.P.C. to either accept or reject it. The defence taken cannot be said to be irrelevant, illogical or fanciful in the entirety of the facts and the nature of other evidence available as discussed hereinbefore. The complete nonconsideration thereof has clearly caused prejudice to the 13 appellant. Unlike the prosecution, the accused is not required to establish the defence beyond all reasonable doubt. The entirety of the discussion, in the facts and circumstances of the case, the nature of evidence available coupled with the manner of its consideration, leaves us satisfied that the links in the chain of circumstances in a case of circumstantial evidence, cannot be said to have been established leading to the inescapable conclusion that the appellant was the assailant of the deceased, incompatible with any possibility of innocence of the appellant. The possibility that the occurrence may have taken place in some other manner cannot be completely ruled out. The appellant is therefore held entitled to acquittal on the benefit of doubt. We accordingly order the acquittal and release of the appellant from custody forthwith, unless wanted in any other case.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
    CRIMINAL APPEAL NO.1330 OF 2018
(arising out of SLP(Crl.) No.2440 of 2018)
REENA HAZARIKA ....APPELLANT(S)
VERSUS
STATE OF ASSAM      ...RESPONDENT(S)
JUDGMENT
NAVIN SINHA, J.
Leave granted.
2.  The appellant is the wife of the deceased convicted under
Section 302 I.P.C. and sentenced to life imprisonment with fine
of Rs.1,000/­ and in default, imprisonment for one month.
3. The   deceased   resided   along   with   the   appellant   and   his
minor daughter CW­1, Miss Puja Hazarika, aged about 9 years,
in the tenanted premises belonging to PW­1 Manoj Kumar Deka,
PW­2   Dipen   Deka   and   PW­3   Bhrigumoni   Deka,   who   are
brothers.  The appellant is stated to have assaulted the deceased
1
in the intervening night of 10.05.2013/11.05.2013. PWs. 1, 2
and 3 are stated to have heard noises and on going there, found
the deceased with head injury attributed to a fall, but that the
deceased was otherwise alright.  They were unable to take him to
the   hospital   because   of   rains   and   the   unavailability   of   an
ambulance.  According to the post­mortem report proved by PW6,
Dr. Ritu Raj Chaliha the deceased had the following injuries
on his person :­
(i) Chop wound of size 11 cm x 2 cm x muscle
deep present on left side of cheek 6 cm medial
tragus and 1 cm above angle of mandible.
(ii) Chop wound of size 9 cm x 2 cm x muscle deep
present back of occipital region.
(iii) Chop wound of size 4 cm x 2 cm x muscle deep
present on left side of forearm.
(iv) Laceration of size (5 x 4) cm present over left
wrist joint on posterior aspect.
(v) Chop wound of size (4 x 1) cm x muscle deep,
present over temporal region on right side.
(vi) Chop wound of size (6 x 2) cm of muscle deep
present over back of scapula.
(vii) Fracture of temporal bone on both sides.
All injuries were ante mortem and caused by moderately
heavy sharp cutting weapon and homicidal in nature.
2
4. The Trial Court and the High Court held that the present
was a case of circumstantial evidence.   The last seen theory
establishes the presence of the appellant with the deceased at
night. Her unnatural conduct because she was not crying, she
was the assailant of the deceased.
5.  Mr. Singh, learned counsel for the appellant submitted that
the courts below have erred in holding that the links in the chain
of   circumstances   stood   established   leading   to   the   only
inescapable conclusion of the appellant being the assailant and
no  other   hypothesis   of   innocence   being   possible.    PW­6  has
deposed that the injuries were caused by a moderately heavy
sharp cutting weapon such as a dao, and that the fracture of the
temporal   bone   may   have   been   caused   by   a   moderate   heavy
weapon.  The recovery from the place of occurrence, as proved by
PW­7 S.I. Nilomani Malakar, is of an ordinary knife used for
cutting betel nut, one feet long with a bent sharp point.  Chop
injuries were not possible with the same.  The alleged knife was
not even shown to PW­6 for eliciting opinion if the injuries could
have been caused by the same.
3
6. Miss Diksha Rai, learned counsel for the State submitted
that the appellant was last seen with the deceased in the room,
confirmed   by   CW­1.   The   appellant   has   failed   to   offer   any
explanation of the circumstances as to how the death occurred
at night.  Her unnatural conduct in not even weeping was also
noticed by PW­7.  The knife used for assault, and blood soaked
clothes of the deceased have also been recovered.
7. We have considered the respective submissions, the orders
of the courts below, as also the evidence available on record.
Normally this court under Article 136 of the Constitution, would
be reluctant in appeal to interfere with the concurrent findings of
two courts by reappreciating the facts and evidence. But in an
appropriate   case,   if   this   court   finds   that   there   has   been
erroneous consideration and appreciation of facts and evidence,
leading to miscarriage of justice, this court is duty bound to
ensure that ultimately justice prevails. It is a well established
principle of criminal jurisprudence that several accused may go
free, but an innocent person should not be punished. In Anant
Chintaman Lagu v. State of Bombay,  (1960) 2 SCR 460 this
court observed as follows :­
4
“16.  Ordinarily, it is not the practice of this
Court   to   re­examine   the   findings   of   fact
reached by the High Court particularly in a
case   where   there   is   concurrence   of   opinion
between the two Courts below. But the case
against   the   appellant   is   entirely   based   on
circumstantial evidence, and there is no direct
evidence that he administered a poison, and
no poison has, in fact been detected by the
doctor,   who   performed   the   post­mortem
examination,   or   by   the   Chemical   Analyser.
The inference of guilt having been drawn on
an examination of a mass of evidence during
which subsidiary findings were given by the
two Courts below, we have felt it necessary, in
view of the extraordinary nature of this case,
to satisfy ourselves whether each conclusion
on   the   separate   aspects   of   the   case,   is
supported by evidence and is just and proper.
Ordinarily, this Court is not required to enter
into an elaborate examination of the evidence,
but we have departed from this rule in this
particular   case,   in   view   of   the   variety   of
arguments that were addressed to us and the
evidence of conduct which the appellant has
sought   to   explain   away   on   hypotheses
suggesting innocence. These arguments, as we
have stated in brief, covered both the factual
as well as the medical aspects of the case, and
have necessitated a close examination of the
evidence once again, so that we may be in a
position to say what are the facts found, on
which our decision is rested.”
8. The   essentials   of   circumstantial   evidence   stand   well
established by precedents and we do not consider it necessary to
reiterate the same and burden the order unnecessarily. Suffice it
5
to   observe   that   in   a   case   of   circumstantial   evidence   the
prosecution is required to establish the continuity in the links of
the   chain   of   circumstances,   so   as   to   lead   to   the   only   and
inescapable   conclusion   of   the   accused   being   the   assailant,
inconsistent or incompatible with the possibility of any other
hypothesis compatible with the innocence of the accused.  Mere
invocation of the last seen theory, sans the facts and evidence in
a case, will not suffice to shift the onus upon the accused under
Section 106 of the Evidence Act,1872 unless the prosecution
first establishes a prima facie case.  If the links in the chain of
circumstances itself are not complete, and the prosecution is
unable   to   establish   a   prima   facie   case,   leaving   open   the
possibility that the occurrence may have taken place in some
other manner, the onus will not shift to the accused, and the
benefit of doubt will have to be given. 
9.    Before proceeding with the discussion further, we deem it
proper to notice that the appellant did not have the benefit of a
lawyer of her choice, both before the trial court and the High
Court, naturally because of  some handicap.   She  had  to  be
provided legal assistance by the Legal Services Authority.  This is
6
not to make any comment or observation on the nature of the
defence made available to the appellant, but only to notice her
handicap in establishing her innocence.
10. PW­1 deposed that he was told by the deceased at about
11:00 p.m. on 10.05.2013 that he had suffered a head injury
because of a fall, and that the witness did not provide any first
aid to the deceased though he along with his brother PW­2, did
try to call an ambulance at about 12:00 am.  Additionally, that
he did not see any other injuries on the deceased.   On the
contrary, CW­1 deposed that PW­1 had applied Dettol to the
wounds of the deceased.
11. Contrary   to   the   statement   of   PW­1,   his   brother,   PW­2
deposed   that   he   was   woken   up   at   about   2­3   a.m.   by   the
appellant who was crying and told him that her husband had
suffered   head   injury.     The   deceased   is   then   stated   to   have
himself told the witness that the injury was not serious.   The
contradiction   in   the   evidence   of   PW­1   and   PW­2   is   further
compounded by the third brother PW­3, deposing that PW­2
informed him of the injury to the deceased at 12.00 am.  All the
7
three witnesses have deposed that the deceased was of heavy
built, because of which they were unable to take him to the
hospital  on   the  motor­cycle,   for   treatment.   The  post   mortem
however recites that the deceased was of average built.   If the
deceased had merely suffered a head injury by fall and was
otherwise fit to talk to the witnesses, we see no reason why he
could   not   have   been   taken   to   the   hospital   on   a   motorcycle.
While PW­3 states that the deceased was wearing clothes, the
post­mortem report shows that the deceased was brought in an
underwear only.   The clothes of the deceased were found near
the well in a gunny bag.  But PW­7 did not consider it necessary
to have the blood group examined by the FSL, which in our
opinion in the facts of the case is a major lapse.
12. The post­mortem report makes it evident that  the chop
wounds could not have been caused by the small knife alleged to
have been recovered.     Fracture of the temporal bone with the
knife was an impossibility. PW­6 in the deposition ruled out that
the injury could be caused by a fall.  The post mortem did not
find any alcohol in the body of the deceased.   The witness also
opined   that   injury   no.   4   could   have   been   caused   while   the
8
deceased may have attempted to save himself from assault.  The
multiple injuries could certainly not have been caused by one
person and tells an entirely different story by itself that the
assailants may have been more than one.   The chop injuries
were possible by a moderate and heavy weapon like a dao.  In
our   opinion   also,   if   the   deceased   was   of   average   built,   it   is
difficult to accept, according to normal prudence and human
behaviour and capacity, that the appellant being a woman, could
have made such severe and repeated assault on the deceased,
who was her husband, with a small knife, without any resistance
and suffered no injury herself.
13. PW­7 claimed to have found a knife with the smell of Dettol.
Even if the knife had been wiped to erase traces of blood the
wooden handle could have revealed much if it had been sent to
the FSL.  The witness again offers no explanation why he did not
do   so.       No   bottle   of   Dettol   has   been   recovered.     There   is
absolutely no evidence that the deceased would often assault the
appellant and the minor child in a drunken condition.  The fact
that PW­7 did not notice tears in the eyes of the appellant,
deemed as unnatural conduct by the courts below, cannot be
9
sufficient   to   draw   an   adverse   inference   of   guilt   against   the
appellant. The appellant being in a helpless situation may have
been   stunned   into   a   shock   of   disbelief   by   the   death   of   her
husband. It is not uncommon human behaviour that on the
death   of   a   near   relative,   or   upon   witnessing   a   murderous
assault, a person goes into complete silence and stupor showing
no reaction or sensibility.  We also find it difficult to believe and
rely   upon   the   evidence   of   CW­1   primarily   because   of   her
minority. If the deceased had been assaulted by the appellant in
the room at night, it would certainly have led to noise and shouts
and   the   witness   could   not   have   possibly   slept   throughout
without waking up.
14.   PW­1   deposed   that   he   informed   the   police   the   next
morning   at   about   8:00   a.m.     But   PW­7   has   deposed   that
information was given at the police station by PW­1 at about
12:00 p.m. on 11.05.2013 and the General Diary entry no. 452
made   in   the   police   station   at   12.20   p.m.,   and   the   F.I.R.
registered  at  7:45  p.m.     These are  suspicious   circumstances
which leaves enough time for planning after thinking for the
manner in which allegations were to be made for deflecting that
10
the occurrence took place in a manner other than what may
have happened actually.
15.  In the background of the aforesaid discussion regarding the
nature of evidence and the manner of its appreciation, we deem
it proper to set out the English translation in the paper book of
defence taken by the appellant under Section 313 Cr.P.C. as
follows:­
“Ans: On the date of occurrence at about 8­
8:30 while I have returned from my work at
Satgaon, I saw that my husband was lying in
the room with bleeding injury.   On my cry,
Manoj Deka and his brothers come there with
drink in the hand of one brother.  Thereafter I
saw Manoj Deka was putting Dettol on the
wound of my husband.   I also rang to 108
ambulance.     When,   I   wanted   to   call   police
Manoj   Deka,   snatched   the   phone   from   me.
On   my   crying   neighbouring   peoples   arrived
there.  I tried to take my husband to medical
but due to non­co­operation my Manoj Deka
and others, I failed to take him to Medical.  On
that night at about 9.30 expired and Manoj
Deka   and   other   neighbours   were   sitting.
Subsequently   Manoj   Deka   has   falsely
implicated me.  I have the suspicion that my
husband was physically assaulted earlier at
some place by Mintu Nath, Dipak Das and
Jeetu Deka while taking liquor and brought by
husband on injured condition and laid in the
room.     I   also   saw   the   lock   of   my  room   in
broken condition, when I arrived here.  I have
not killed my husband.  I am innocent.”
11
PW­2 has acknowledged in his evidence that he would have
drinks  with   the  deceased.     According  to  the  post­mortem
report,   the   stomach   of   the   deceased   was   found   empty,
suggesting   that   the   assault   had   taken   place   earlier   in   the
evening contrary to the evidence of PWs. 1, 2 and 3 suggesting
the assault in the late hours of the night by which time the
deceased would undoubtedly have had his dinner.
16. Section 313, Cr.P.C. cannot be seen simply as a part of
audi   alteram   partem.     It   confers   a   valuable   right   upon   an
accused to establish his innocence and can well be considered
beyond a statutory right as a constitutional right to a fair trial
under  Article   21  of  the   Constitution,   even   if   it   is   not   to  be
considered as a piece of substantive evidence, not being on oath
under Section 313(2), Cr.P.C.  The importance of this right has
been considered time and again by this court, but it yet remains
to   be   applied   in   practice   as   we   shall   see   presently   in   the
discussion to follow.   If the accused takes a defence after the
prosecution evidence is closed, under Section 313(1)(b) Cr.P.C.
the Court is duty bound under Section 313(4) Cr.P.C. to consider
the same.   The mere use of the word ‘may’ cannot be held to
12
confer a discretionary power on the court to consider or not to
consider such defence, since it constitutes a valuable right of an
accused for access to justice, and the likelihood of the prejudice
that may be caused thereby.  Whether the defence is acceptable
or not and whether it is compatible or incompatible with the
evidence available is an entirely different matter.   If there has
been no consideration at all of the defence taken under Section
313 Cr.P.C., in the given facts of a case, the conviction may well
stand vitiated.  To our mind, a solemn duty is cast on the court
in dispensation of justice to adequately consider the defence of
the   accused   taken   under   Section   313   Cr.P.C.   and   to   either
accept or reject the same for reasons specified in writing.
17.   Unfortunately   neither   Trial   Court   nor   the   High   Court
considered it necessary to take notice of, much less discuss or
observe with regard to the aforesaid defence by the appellant
under Section 313 Cr.P.C. to either accept or reject it.   The
defence taken cannot be said to be irrelevant, illogical or fanciful
in the entirety of the facts and the nature of other evidence
available   as   discussed   hereinbefore.   The   complete   nonconsideration
  thereof   has   clearly   caused   prejudice   to   the
13
appellant. Unlike the prosecution, the accused is not required to
establish the defence beyond all reasonable doubt. The accused
has only to raise doubts on a preponderance of probability as
observed in  Hate Singh  Bhagat  Singh  vs.  State  of  Madhya
Bharat, AIR 1953 SC 468 observing as follows :­
“26. We have examined the evidence at length
in this case, not because it is our desire to
depart from our usual practice of declining to
the assess, the evidence in an appeal here,
but because there has  been in  this  case  a
departure from the rule that when an accused
person but for the word a reasonable defence
which is likely to be true,…… then the burden
on   the   other   side   becomes   all   the   heavier
because   a   reasonable   and   probable   story
likely to be true friend pitted against AV and
vacillating case is bound to raise a reasonable
doubts   of   which   the   accused   must   get   the
benefit….”
A similar view is expressed in  M.  Abbas  vs.  State  of  Kerala,
(2001) 10 SCC 103 as follows :­
“10….On   the   other   hand,   the   explanation
given by the appellant both during the crossexamination
of prosecution witnesses and in
his   own   statement   recorded   under   Section
313   CrPC   is   quite   plausible.   Where   an
accused   sets   up   a   defence   or   offers   an
explanation, it is well settled that he is not
required   to   prove   his   defence   beyond   a
reasonable doubt but only by preponderance
of probabilities….”
14
 
 18. The   entirety   of   the   discussion,   in   the   facts   and
circumstances   of   the   case,   the   nature   of   evidence   available
coupled with the manner of its consideration, leaves us satisfied
that   the   links   in   the   chain   of   circumstances   in   a   case   of
circumstantial evidence, cannot be said to have been established
leading to the inescapable conclusion that the appellant was the
assailant of the deceased, incompatible with any possibility of
innocence of the appellant.  The possibility that the occurrence
may   have   taken   place   in   some   other   manner   cannot   be
completely ruled out.  The appellant is therefore held entitled to
acquittal on the benefit of doubt.   We accordingly order the
acquittal and release of the appellant from custody forthwith,
unless wanted in any other case. 
19. The appeal is allowed.   
…………….........J.
[R.F. NARIMAN]
……...................J.
[NAVIN SINHA]
NEW DELHI
OCTOBER 31, 2018.
15

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. = the appellant has not raised the objection as to nonframing of charges at the earliest point of time namely the trial court and the first appellate court - High Court. - 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.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1568 OF 2015
KAMIL …..Appellant
VERSUS
STATE OF UTTAR PRADESH …..Respondent
J U D G M E N T
R. BANUMATHI, J.
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.
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.
1
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
2
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.
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
3
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
4
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 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.
5
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;
(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
6
“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 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
7
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 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:
8
(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 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
9
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).
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; Rattiram and 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
10
1. Nasir s/o Wali Mohammad r/o Oopar Para P.S. Kotwali, Badaun
2. Adil r/o
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 tap.
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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 nephew and 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
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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 nonframing
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 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.
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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 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 Singh and 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
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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.
…………….……………J.
 [R. BANUMATHI]
…………….……………J.
 [INDIRA BANERJEE]
New Delhi;
October 31, 2018
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