KAMIL versus STATE OF UTTAR PRADESH

KAMIL

STATE OF UTTAR PRADESH

(Criminal Appeal No. 1568 of 2015)

OCTOBER 31, 2018

[R. BANUMATHI AND INDIRA BANERJEE, JJ.]

Code of Criminal Procedure, 1973: s. 464 – Effect of omissionto frame, or absence of, or error in, charge – On facts, convictionof accused u/s. 302/34 IPC – However, omission to frame chargeu/s. 302, though the gist of the charge sheet filed against the accusedclearly showed that the accused has been charged for the saidoffence – Maintainability of conviction u/s. 302 – Held: Convictionfor the substantive offence without charge can be set aside only ifthe accused shows that prejudice has been caused to him and that“failure of justice” has occasioned thereby – No such submissionwas ever made before the trial court or before the High Court – Noprejudice caused to the accused nor failure of justice shown tohave been occasioned – Furthermore, the gist of the charge sheetclearly alleged their sharing of common intention in committing themurder of victim with the co-accused and the appeal by the similarlysituated co-accused has been dismissed by this Court – Thus, theorder passed by the High Court upholding the conviction of theaccused u/s. 302/34 does not warrant interference – Penal Code,1860 – s. 302/34.

Dismissing the appeal, the Court

HELD: 1.1 Section 464 Cr.P.C. relates to the effect ofomission to frame, or absence of, or error, in charge. Sub-section(1) thereof provides that no finding, sentence or order of courtof competent jurisdiction shall be deemed invalid merely on theground that no charge was framed or on the ground of any error,omission or irregularity in the charge including any misjoinder ofcharge, unless, in the opinion of the court of appeal, confirmationor revision, failure of justice has in fact been occasioned thereby.Absence of charge would vitiate the conviction only if it has causedprejudice to the accused and has in fact been occasioned thereby.[Para 10, 11][1098-F-G; 1099-B]

A1.2 The charge was not framed against the appellant underSection 302 read with Section 34 IPC. But it is for the accused toprove that omission to frame charge has occasioned in failureof justice. Though specific charge under Section 302/34 was notframed, the gist of the charge sheet filed against the appellant/accused clearly shows that the accused has been charged for theBoffence under Section 302/34. In the charges framed, even if theappellant and co-accused were charged only under Section 323/34, the gist of the charge sheet clearly alleges their sharing ofcommon intention in committing the murder of victim with thefirst accused. [Para 18][1104-F-G; 1105-E]C

1.3 After filing of the charge sheet, case was committed tothe court of Sessions. The trial court has pointed out that theaccused persons were charged under Sections 302, 302/34, 323and 323/34 IPC to which they pleaded not guilty and opted fortrial. The appellant/accused has thus, clearly understood thatDcharge has been framed against him under Section 302 read withSection 34 IPC. If really, the appellant was under the impressionthat no charge was framed against him under Section 302 readwith Section 34 IPC, the appellant would have raised the objectionfor his committal to the Sessions Court. Appellant has not raisedthe objection as to non-framing of charges at the earliest point ofEtime namely the trial court and the High Court. [Para 19][1105-F-G]

1.4 The procedure followed by the Court has neither causedprejudice to the appellant nor deprived him of principles of NaturalJustice. In the High Court, the appellant did not raise any

Fgrievance as to non-framing of charge under Section 302 readwith Section 34 IPC and that it has caused prejudice to him. Onthe other hand, the counsel appearing for the appellant onlycontended that the appellant ought not to have been convictedby invoking the principle of vicarious liability enshrined by Section

34. All these aspects clearly show that the appellant clearlyGunderstood that charge under Section 302 read with Section 34has been framed against him and throughout he has beendefending himself only for the charge under Section 302. [Para20, 21][1106-D, F]

1.6 The appeal preferred by the similarly situated co-Haccused has been dismissed by this Court. conviction for the

substantive offence without charge can be set aside only if theaccused shows that prejudice has been caused to him and that“failure of justice” has occasioned thereby. No such argumentwas ever made before the trial court or before the High Court.No prejudice has been caused to the accused nor failure of justicehas been shown to have been occasioned warranting interferencewith the impugned judgment. [Para 23][1107-D]

Willie (William) Slaney v. State of Madhya Pradesh AIR1956 SC 116; Gurbachan Singh v. State of Punjab AIR1957 SC 623; Main Pal v. State of Haryana (2010) 10SCC 130; Darbara Singh v. State of Punjab (2012) 10SCC 476; Mohan Singh v. State of Bihar (2011) 9 SCC

272 – referred to.

Case Law Reference

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.1568 of 2015

From the Judgment and Order dated 28.07.2014 of the High Courtof Judicature at Allahabad in Criminal Appeal No. 1047 of 1989.

Ashok Kumar Sharma, Kshitij Mudgal, Ms. Bandana Singh, Advs.for the Appellant.

Ankur Prakash, Ashutosh Kumar Sharma, Yudhister Bhardwaj,Ms. Lhing N., Advs. for the Respondent.

The Judgment of the Court was delivered by

R. BANUMATHI, J. 1.This appeal arises out of the judgmentdated 28.07.2014 passed by the High Court of Allahabad in CriminalAppeal No.1047 of 1989 in and by which the High Court has dismissedthe appeal filed by the appellant thereby affirming his conviction underSection 302 IPC and for other offences and sentence of life imprisonmentimposed upon him passed by the trial court.

A2. Brief facts of the case are that on 03.01.1986 at about 09.00AM, complainant-Baboo Khan (PW-3) who is the maternal uncle ofdeceased Akhlaq was informed by his father that his sister’s daughterParveen had gone to fetch water from the tank where accused Rashid(A1) and Adil (A3) had misbehaved with her. However, no further actionwas taken by them to save their reputation. On the same day, at aroundB04.00 PM, when complainant/PW-3 along with his nephew deceasedAkhlaq and Aadil Hussain (PW-2) were going towards his shop, theysaw accused Rashid armed with knife, Nasir (A2) armed with hockey,accused Adil and appellant-Kamil (A4) armed with danda in their handscoming towards them and surrounded PW-1, deceased Akhlaq and PW-C3. Thereafter, appellant-Kamil gave danda blow on the head of PW-2 and when deceased Akhlaq tried to snatch the hockey stick fromaccused Nasir, appellant-Kamil also gave danda blow on the head ofdeceased from behind and when he tried to run away, accused Nasirand Adil caught hold of deceased and thereafter accused Rashid stabbedthe knife in the chest of deceased on which deceased fell down on theDground with the knife which was stabbed on his chest. On raising alarmby PW-3, Jamal Uddin (PW-1) along with other people came there forhelp. Thereafter, all the accused ran away and deceased was taken tothe hospital, where he died. Upon completion of investigation, chargesheet was filed against the accused persons.

3. Charges were framed against the accused under Sections 302,302 read with Section 34, 323 and 323 read with Section 34 IPC. Tobring home the guilt of the accused, the prosecution examined eightwitnesses and exhibited number of documents.

4. Upon consideration of evidence adduced, the trial court videFits judgment dated 01.05.1989 convicted the accused as under:-

AccusedConvictionSentenceRashid (A1) Section 302 IPC Life Imprisonment Section 323 read with Section 34 IPC One month R.I. Nasir (A2)Section 302 read with Section 34 IPCLife ImprisonmentSection 323 read with Section 34 IPC One month R.I. Adil (A3) Section 302 read with Section 34 IPC Life Imprisonment Section 323 read with Section 34 IPC One month R.I. Kamil (A4) Section 302 read with Section 34 IPC Life Imprisonment Section 323 IPC One month R.I.

5. Being aggrieved, the appellant/accused filed appeal before theHigh Court which came to be dismissed vide impugned judgment dated28.07.2014. Further, appeal preferred by the accused Nasir before theSupreme Court in SLP(Crl) No.9886 of 2014 was dismissed vide orderdated 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 havecategorically stated that on the date of incident i.e on 03.01.1986 at04.00 PM, PW-3 along with his nephew deceased Akhlaq and AdilHussain (PW-2) was going to his shop at Jogipura and when they reachednear the temple at Lalpur, they saw all the four accused persons standingand waiting for them. PW-3 further deposed that at that time accusedRashid was having knife in his hand whereas accused Nasir and Kamilwere having hockey and danda in their hands respectively. Immediatelythereafter, appellant/accused Kamil gave danda blow on the head ofAdil Hussain (PW-2). When deceased Akhlaq tried to snatch hockeystick from accused Nasir, appellant/accused Kamil gave danda blowon the head of deceased Akhlaq from behind. When deceased Akhlaqtried to run away in order to escape himself, accused Nasir and Adilcaught hold of his both hands and at the same time, appellant/accusedKamil assaulted Adil (PW-2) with danda. When PW-3 snatched dandafrom appellant/accused Kamil and tried to retaliate to the attack withthe same danda, accused Rashid pierced knife in the chest of deceasedAkhlaq. At this, PW-3 shouted for help and on hearing this, Jamaluddin(PW-1), Afsar Ali Khan and Shamshad Hussain who were taking tea atthe stall of PW-3 rushed towards the spot. On seeing them, accusedpersons fled away from the spot. Thereafter, PW-3 took cycle-rickshaw and took deceased Akhlaq to district hospital. Deceased Akhlaqwas 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 ofdeceased. In the hospital, deceased succumbed to injuries. The evidenceof 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 302IPC was not framed against him and therefore the conviction of theappellant/accused under Section 302 IPC is not maintainable. Contentionof the appellant is that non-framing of charge under Section 302 IPChas caused prejudice to him. It was further submitted that even though

Athe question being substantive question, the appellant is at liberty toraise the same at any stage.

8. Placing reliance upon Section 464 Cr.P.C., learned counselappearing for the respondent-State submitted that conviction would bevalid even if there is any omission to frame charge provided it has notBoccasioned “failure of justice”. Taking us through the judgment ofthe trial court and the High Court, the learned counsel submitted that theappellant was well-aware of the gist of charges under Section 302 IPCagainst him and in fact the appellant has taken the “plea of alibi”. Itwas submitted that even if there was absence of charge, the appellanthas not proved “failure of justice” has in fact been occasioned and theCconviction of the appellant recorded by the concurrent findings of thetrial court and the High Court under Section 302 IPC cannot be interfered.

9. We have considered the rival contentions and perused theimpugned judgment and materials placed on record.

10. Section 464 of the Code relates to the effect of omission toDframe, or absence of, or error, in charge. Sub-section (1) thereof providesthat no finding, sentence or order of court of competent jurisdictionshall be deemed invalid merely on the ground that no charge was framedor on the ground of any error, omission or irregularity in the chargeincluding any misjoinder of charge, unless, in the opinion of the court ofEappeal, confirmation or revision, failure of justice has in fact beenoccasioned thereby. Section 464 Cr.P.C. reads as under:-

“464. Effect of omission to frame, or absence of, or errorin, charge –

(1) No finding, sentence or order by Court of competentjurisdiction shall be deemed invalid merely on the ground that nocharge was framed or on the ground of any error, omission orirregularity in the charge including any misjoinder of charges,unless, in the opinion of the Court of appeal, confirmation orrevision, failure of justice has in fact been occasioned thereby.

(2) If the court of appeal, confirmation or revision is of opinionthat failure of justice has in fact been occasioned, it may—

(a) in the case of an omission to frame charge, order that acharge be framed and that the trial be recommenced from thepoint immediately after the framing of the charge;

(b) in the case of an error, omission or irregularity in the charge,direct new trial to be had upon charge framed in whatevermanner it thinks fit.”

11. Absence of charge would vitiate the conviction only if it hascaused prejudice to the accused and has in fact been occasioned thereby.In Willie (William) Slaney v. State of Madhya Pradesh AIR 1956 SC116, the Constitution Bench explained the concept of “prejudice causedto the accused” and “failure of justice” and held as under:-

“5. Before we proceed to set out our answer and examine theprovisions of the Code, we will pause to observe that the Code isa code of procedure and, like all procedural laws, is designed tofurther the ends of justice and not to frustrate them by theintroduction of endless technicalities. The object of the Code isto ensure that an accused person gets full and fair trialalong certain well-established and well-understood lines thataccord with our notions of natural justice.

If he does, if he is tried by competent court, if he is told andclearly understands the nature of the offence for which he isbeing tried, if the case against him is fully and fairly explainedto him and he is afforded full and fair opportunity ofdefending himself, then, provided there is ‘substantial’compliance with the outward forms of the law, mere mistakesin procedure, mere inconsequential errors and omissions inthe trial are regarded as venal by the Code and the trial is notvitiated unless the accused can show substantial prejudice.That, broadly speaking, is the basic principle on which theCode is based. (Underlining added)

12. The Constitution Bench then examined as to whether theprocedure followed by the court has caused actual injustice to the accusedand held as under:-

“12. ……Except where there is something so vital as to cut at theroot of jurisdiction or so abhorrent to what one might term naturaljustice, the matter resolves itself to question of prejudice. Someviolations of the Code will be so obvious that they will speak forthemselves as, for example, refusal to give the accused hearing,a refusal to allow him to defend himself, refusal to explain thenature of the charge to him and so forth. These go to the

foundations of natural justice and would be struck down as illegalforthwith. It hardly matters whether this is because prejudice isthen patent or because it is so abhorrent to well-established notionsof natural justice that trial of that kind is only mockery of atrial and not of the kind envisaged by the laws of our land, becauseeither way they would be struck down at once. Other violationswill not be so obvious and it may be possible to show that havingregard to all that occurred no prejudice was occasioned or thatthere was no reasonable probability of prejudice. In still anotherclass of case, the matter may be so near the border line that veryslight evidence of reasonable possibility of prejudice would swingthe balance in favour of the accused.

43. ….. Every reasonable presumption must be made in favour ofan accused person; he must be given the benefit of everyreasonable doubt. The same broad principles of justice and fairplay must be brought to bear when determining matter ofprejudice as in adjudging guilt. But when all is said and done, whatwe are concerned to see is whether the accused had fair trial,whether he knew what he was being tried for, whether the mainfacts sought to be established against him were explained to himfairly and clearly and whether he was given full and fair chanceto defend himself. If all these elements are there and no prejudice

is shown, the conviction must stand whatever the irregularitieswhether traceable to the charge or to want of one.”

13. Following the Constitution Bench in Willie Slaney case, thebench of three Judges of this Court in Gurbachan Singh v. State ofPunjab, AIR 1957 SC 623 observed that the Court is not to looking intoFtechnicalities, but to the substance and held as under:-

“7. …..in judging question of prejudice, as of guilt, courts mustact with broad vision and look to the substance and not totechnicalities, and their main concern should be to see whetherthe accused had fair trial, whether he knew what he was beingGtried for, whether the main facts sought to be established againsthim were explained to him fairly and clearly and whether he wasgiven full and fair chance to defend himself…….”

14. After considering the meaning of the expression “failure ofjustice” and after referring to the Constitution Bench in Willie Slaney

[R. BANUMATHI, J.]

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 Courtheld thus:

22. … conviction would be valid even if there is any omissionor irregularity in the charge, provided it did not occasion failureof justice.

23. … The criminal court, particularly the superior court shouldmake close examination to ascertain whether there was reallya failure of justice or whether it is only camouflage.

16. The above principles are reiterated in several decisions ofthis Court, including State of W.B.and Another v. Laisal Haqueand Others (1989) 3 SCC 166, State of A.P. v. ThakkidiramReddy and Others (1998) 6 SCC 554, Dalbir Singh v. State ofU.P. (2004) 5 SCC 334, Dumpala Chandra Reddy v. NimakayalaBalireddy 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 464of the Code, relevant to this case, become evident from the saidenunciations:

(i) The object of framing charge is to enable an accused to havea clear idea of what he is being tried for and of the essential factsthat he has to meet. The charge must also contain the particularsof date, time, place and person against whom the offence wascommitted, as are reasonably sufficient to give the accused noticeof 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 hassuch knowledge, his defence will be prejudiced. Where an accusedis charged with having committed offence against one person buton the evidence led, he is convicted for committing offence against

Aanother person, without charge being framed in respect of it,the accused will be prejudiced, resulting in failure of justice. Butthere will be no prejudice or failure of justice where there was anerror in the charge and the accused was aware of the error. Suchknowledge can be inferred from the defence, that is, if the defenceof the accused showed that he was defending himself against theBreal and actual charge and not the erroneous charge.

(iii) In judging question of prejudice, as of guilt, the courts mustact with broad vision and look to the substance and not to thetechnicalities, and their main concern should be to see whetherthe accused had fair trial, whether he knew what he was beingtried for, whether the main facts sought to be established againsthimwere explained to him fairly and clearly, and whether he wasgiven full and fair chance to defend himself. (Underliningadded)

15. In Darbara Singh v. State of Punjab(2012) 10 SCC 476, thisDCourt considered the similar issue and came to the conclusion that theaccused has to satisfy the court that there is any defect in framing thecharge which has prejudiced the cause of the accused resulting in failureof justice. It is only in that eventuality the court may interfere. The Courtelaborated the law as under:-

“20. The defect in framing of the charges must be so serious thatit cannot be covered under Sections 464/465 Cr.P.C, which providethat, an order of sentence or conviction shall not be deemed to beinvalid only on the ground that no charge was framed, or thatthere was some irregularity or omission or misjoinder of charges,Funless the court comes to the conclusion that there was also, as aconsequence, failure of justice. In determining whether anyerror, omission or irregularity in framing the relevant charges, hasled to failure of justice, the court must have regard to whetheran objection could have been raised at an earlier stage during theproceedings or not. While judging the question of prejudice orGguilt, the court must bear in mind that every accused has right toa fair trial, where he is aware of what he is being tried for andwhere the facts sought to be established against him, are explainedto him fairly and clearly, and further, where he is given full andfair chance to defend himself against the said charge(s).

[R. BANUMATHI, J.]

21. ‘Failure of justice’ is an extremely pliable or facile expression,which can be made to fit into any situation in any case. The courtmust endeavour to find the truth. There would be ‘failure ofjustice’; not only by unjust conviction, but also by acquittal of theguilty, as result of unjust failure to produce requisite evidence.Of course, the rights of the accused have to be kept in mind andalso safeguarded, but they should not be overemphasised to theextent of forgetting that the victims also have rights. It has to beshown that the accused has suffered some disability or detrimentin respect of the protections available to him under the Indiancriminal jurisprudence. ‘Prejudice’ is incapable of being interpretedin its generic sense and applied to criminal jurisprudence. Theplea of prejudice has to be in relation to investigation or trial, andnot with respect to matters falling outside their scope. Once theaccused is able to show that there has been serious prejudicecaused to him, with respect to either of these aspects, and thatthe same has defeated the rights available to him under criminaljurisprudence, then the accused can seek benefit under the ordersof the court. (Vide Rafiq Ahmad alias Rafi v. State of U.P. (2011)8 SCC 300, SCC p. 320, para 36; Rattiramand Others v. State ofM.P.Through Inspector of Police (2012) 4 SCC 516 andBhimanna v. State of Karnataka (2012) 9 SCC 650)”(Underlining added)

16. The question falling for consideration is whether non-framingof charge has caused prejudice in the present case. In order to judgewhether failure of justice has been occasioned, it is relevant to examinewhether the accused was aware of the basic ingredients of the offencefor which he is being convicted and whether they were explained to himand whether he got fair chance to defend. The crux of the issue iswhether in this case, omission to frame charge under Section 302 IPChas 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 chargeyou1. Nasir s/o Wali Mohammad r/o Oopar Para P.S. Kotwali,Badaun

2. Adil r/o

ABCDE

3. Kamil s/o Banney Min as follows:-

Firstly:- That you Rashid on 03.01.1986 at about 04.00 PM inMohalla Oopar Para near Lalpul Budaun, P.S. Kotwali Budaun,formed common intention to make murderous assault on Akhlaqand anyone else who came to his rescue and in furtherance ofBsaid common intention Rashid did commit murder by intentionallycausing the death of aforesaid Akhlaq and you thereby committedan offence punishable under Section 302/34 of the Indian PenalCode and within my cognizance.

Secondly:- That you Adil on aforesaid date, time and placevoluntarily caused Adil and thereby committed an offencepunishable under Section 323 of the Indian Penal Code and withinmy cognizance.

Thirdly:- That on aforesaid date, time and place you Kamil andNasir along with Rashid and Adil formed common intention toDcause hurt to Adil and anyone else and in furtherance of saidcommon intention Adil voluntarily caused hurt to Adil and youthereby committed an offence punishable under Section 323/34of the Indian Penal Code and within my cognizance.

And I hereby direct that you be tried by this court on the saidcharges.

(C.P. Singh)

Addl. District Judge,Special Judge (E.C. Act),Budaun18.09.1986"

18. As seen from the above, charge was not framed against theFappellant under Section 302 read with Section 34 IPC. But it is for theaccused to prove that omission to frame charge has occasioned in afailure of justice. Though specific charge under Section 302 read withSection 34 IPC was not framed, the gist of the charge sheet filed againstthe appellant/accused clearly shows that the accused has been chargedGfor the offence under Section 302 read with Section 34 IPC as seenfrom the following:-

“Sir,

On 03.01.1986, the complainant came to the Police Station Kotwaliand orally informed that his niece went to take water from the

tap. She was teased by the accused but they did not make it anissue due to the respect in the society. However, there was anugly quarrel over there. He pacified his niece. I along with Adiland Akhlaq today were going to my shop situated at Jogipuraatabout 04.00 PM, when we reached near Lalpur Mandir, accusedmentioned in Column No.2 and 3 were present there. Kamil wascarrying Danda Nasir was carrying hockey and Rashidwas carrying knife in their hands. They surrounded us. Theyabused my nephew Adil. Adil protested about abusing and saidthat it would not be good if you continue. On this accused hitmy nephew with danda.I snatched danda from Kamil to savemy nephew. Accused Nasir and Adil caught hold mynephewand Rashid poked the knife in his chest. My nephewsat down on the earth and his condition started deteriorating. Icarried him to hospital where he died. On the basis of thisinformation crime case No.2/86 u/s 302/323/34 IPC. AccusedRashid and others were arrested and were sent to jail. AccusedKamil is not available and the investigation is going on againsthim. The charge sheet is filed u/s 302/323/34 IPC against theseaccused persons. Dated 13.01.1986.”

In the charges framed, even if the appellant and accused Nasir werecharged only under Section 323 read with Section 34 IPC, the gist of thecharge sheet clearly alleges their sharing of common intention incommitting the murder of Akhlaq with the first accused Rashid.

19. It is pertinent to note that after filing of the charge sheet, casewas committed to the court of Sessions. The trial court has pointed outthat the accused persons were charged under Sections 302, 302/34, 323and 323/34 IPC to which they pleaded not guilty and opted for trial.Theappellant/accused has thus clearly understood that charge has beenframed against him under Section 302 IPC read with Section 34 IPC. Ifreally, the appellant was under the impression that no charge was framedagainst him under Section 302 read with Section 34 IPC, the appellantwould have raised the objection for his committal to the Sessions Court.It is also to be pointed out that the appellant has not raised the objectionas to non-framing of charges at the earliest point of time namely the trialcourt and the first appellate court - High Court.

20. Learned counsel for the appellant made submissions contendingthat even the relevant questioning showing sharing of common intention

Aof the appellant has not been put to the accused during questioning underSection 313 Cr.P.C. The above contention does not merit acceptanceas seen from the following:-

“Q.4 It has come in the evidence that on 03.01.1986 at about04.00 PM near Lal Pul Mandir, you accused Kamil and NasirBcarrying danda and hockey caused injuries to Adil (nephew ofwitness). You accused Nasir and Adil caught hold Akhalq and atthe instance of accused Kamil you accused Rashid stabbed theknife in the chest of Akhlaq and caused murder. What do you sayabout it?

CAns. 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 theappellant and other accused. As pointed out in para (14) above, the gistof the charge sheet clearly alleges sharing of common intention by theDappellant/accused. In our considered view, the procedure followed bythe Court in the instant case has neither caused prejudice to the appellantnor deprived him of principles of Natural Justice.

21. It is also to be pointed out that in the High Court, the appellanthas not raised any grievance as to non-framing of charge under SectionE302 read with Section 34 IPC and that it has caused prejudice to him.On the other hand, the learned counsel appearing for the appellant onlycontended that the appellant Kamil ought not to have been convicted byinvoking the principle of vicarious liability enshrined by Section 34 IPC.All these aspects clearly show that the appellant clearly understood thatcharge under Section 302 read with Section 34 IPC has been framedFagainst him and throughout he has been defending himself only for thecharge under Section 302 IPC. In such facts and circumstances, itcannot be said that the failure of justice has occasioned to him and theabsence of charge under Section 302 read with Section 34 IPC cannotbe said to have caused any prejudice to him.

22. In Mohan Singh v. State of Bihar (2011) 9 SCC 272, wherethe appellants therein for the first time raised the points relating to errorsin framing of charge before the Supreme Court, this Court held as under:-

“14. In case where points relating to errors in framing of chargeor even misjoinder of charge are raised before this Court for the

first time, such grievances are not normally considered by thisCourt. Reference in this connection may be made to the decisionof three-Judge Bench of this Court in Mangal Singhand Othersv. State of Madhya Bharat AIR 1957 SC 199. Imam, J. deliveringa unanimous opinion of the Court held in para 5 at p. 201 of theReport as follows:

“5. It was, however, urged that there had been misjoinder ofcharges. This point does not seem to have been urged in theHigh Court because there is no reference to it in the judgmentof that Court and does not seem to have been taken in thepetition for special leave. The appellants cannot, therefore, bepermitted to raise this question at this stage.”

23. It is also pertinent to point out that the appeal preferred by thesimilarly situated co-accused Nasir has been dismissed by this Court. Aconviction for the substantive offence without charge can be set asideonly if the accused shows that prejudice has been caused to him andthat “failure of justice” has occasioned thereby. No such argumentwas ever made before the trial court or before the High Court. Asdiscussed above in our considered view, no prejudice has been causedto the accused nor failure of justice has been shown to have beenoccasioned warranting interference with the impugned judgment.

24. In the result, the appeal is dismissed.

Nidhi Jain

Appeal dismissed.