KALICHARAN & ORS versus STATE OF UTTAR PRADESH

[2022] 16 S.C.R.

KALICHARAN & ORS.

STATE OF UTTAR PRADESH

(Criminal Appeal No. 122 of 2021)

BDECEMBER 14, 2022

[SANJAY KISHAN KAUL AND ABHAY S. OKA, JJ.]

Code of Criminal Procedure, 1973 – ss.213, 313 – Failure tocomply with the requirements of s.213 and s.313 – The Fast trackCourt convicted accused nos.1, 2, 3 and 4 for offences punishableCu/s. 302, 307 of the IPC along with other sections – Allegation thataccused no. 1,3,4 were armed with sharp edged weapons andaccused no.2 with pistol – It was also alleged that accused no. 2murdered deceased (‘H’) by firing bullets from his pistol – Held: Incross-examination PW-1 stated that he was not aware whether bulletsDhit victim (‘H’) or not – PW-2 also came out with the same version –PW-3-doctor who performed post mortem stated that deceasedsuffered injuries caused by the sharp-edged weapons – He did notdeposed any bullet injuries – In the instant case, not only that acharge was not framed on the allegation that the death was causeddue to assault physically made by the accused, misleading chargeEwas framed that death was caused due to bullet injuries sustainedby the bullets fired by the accused no.2 with pistol in his hand –‘H’ did not receive any bullet injury – Still, the said allegation wasput to all the accused in the examination u/s. 313 – Thus, not onlythat the charge framed was misleading, but most materialFcircumstance brought on record against the accused in the evidencethat ‘H’ died due to injuries caused by the attack made by accusednos.1,3 and 4 was not put any of the accused – Thus, not only thatthe charge was misleading but the accused had no opportunity toexplain the circumstance in which ‘H’ was allegedly killed whichwas brought on record during the trial – Therefore, in the facts ofGthe case, by reason of omission to frame proper charge in termsof s. 213 of CrPC, and by reason of not putting importantcircumstances appearing in the evidence in the statement u/s. 313caused serious prejudice to the accused.

Code of Criminal Procedure, 1973 – Chapter XVII –Provisions regarding framing of charge – Held: The object of thesaid provisions is obviously to make the accused aware of theaccusations against him on the basis of which the prosecution isseeking to convict him – The object of the provisions regarding theframing of charge is that accused should be in position toeffectively defend himself – An accused can properly defend himselfprovided he is clearly informed about the nature of the allegationsagainst him before the actual trial starts – That is why there areelaborate provisions in CrPC in that behalf.

Code of Criminal Procedure, 1973 – Omission to frame acharge or error in the charge – Power of Court of appeal – Held:When the Court of appeal is called upon to decide whether anyfailure of justice has been occasioned due to omission to frame acharge or error in the charge, the Court is duty bound to examinethe entire record of the trial including all exhibited documents,depositions and the statements of the accused recorded u/s. 313.

Code of Criminal Procedure, 1973 – s.313 – Requirement of– Held: The requirement of Section 313 CrPC is that the accusedmust be explained the circumstances appearing in the evidenceagainst him so that accused can offer an explanation – After anaccused is questioned under Section 313 CrPC, he is entitled totake call on the question of examining defence witnesses andleading other evidence – If the accused is not explained theimportant circumstances appearing against him in the evidence onwhich his conviction is sought to be based, the accused will not bein position to explain the said circumstances brought on recordagainst him – He will not be able to properly defend himself.

Jai Dev v. State of Punjab [1963] 3 SCR 489; SharadBirdhichand Sarda v. State of Maharashtra (1984) 4SCC 116 : [1985] 1 SCR 88 – relied on.

Case Law Reference

[1963] 3 SCR 489[1985] 1 SCR 88

relied onrelied on

Para 22Para 22

ACRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.122 of 2021.

From the Judgment and Order dated 24.05.2019 of the High Courtof Judicature at Allahabad in Criminal Appeal No. 2181 of 2003.

Rakesh K Khanna, Sr. Adv., Ms. Shefali Jain, Samant Singh, AdityaBPushkal Khanna, Ramya Khanna, Ms. Archana Midha, Ali MushtaqNewazish, Ms. Preeja Nair, Gurmeet Singh, Aditya Kumar Archiya,Rajesh Prasad Singh, Advs. for the Appellants.

Vindo Diwakar, AAG, Sarvesh Singh Baghel, Pranav Kumar, B.N.Dubey, Vishal Kumar Singh, Advs. for the Respondent.C

The Judgment of the Court was delivered by

ABHAY S. OKA, J.

FACTUAL DETAILS

1. Mainly two issues arise in this appeal. The first issue is regardingDthe omission to frame proper charge in accordance with Section 213of the Code of Criminal Procedure, 1973 (for short, ‘CrPC’). The secondissue is of the consequence of the failure of the learned Trial Judge toput material circumstances brought on record in the prosecution evidenceto the accused in their statements under Section 313 of CrPC. In short,Ethis Court will have to examine whether there is failure to comply withthe requirements of Sections 213 and 313 of CrPC. If the answer to thesaid question is in the affirmative, the next question will be whetherprejudice has been caused to the accused due to failure to comply withthe aforesaid provisions and whether it has caused failure of justice.

F2. The present appeal arises out of the judgment and order of theFast Track Sessions Court at Bulandshahr. The Fast Track Courtconvicted the accused Bangali who is not before this Court for theoffences punishable under Section 148 of the Indian Penal Code (forshort, ‘IPC’), Section 302 of IPC as well as Section 307 read with Section149 of IPC. The Fast Track Court convicted Kalicharan (accused no.1),GYaad Prakash (accused no.2), Diwan Singh (accused no.3), and Smt.Shakuntala Devi (accused no.4) for the offences punishable under Section148 of IPC, Section 302 read with Section 149 of IPC and Section 307read with Section 149 of IPC. Yaad Prakash (accused no.2) was alsoconvicted for the offence punishable under Section 25 of the Arms Act,H1959. Two separate appeals were preferred before the High Court of

Judicature at Allahabad. One appeal was preferred by the accusedBangali and the other one was preferred by accused nos.1 to 4. By theimpugned judgment, the appeals were dismissed.

3. Accused Bangali did not challenge the impugned Judgment.Accused nos.1 to 4 have preferred this appeal. We must note here thatappellant no.3 Diwan Singh (accused no.3) raised plea in the presentappeal that on the date of the commission of the alleged offence, he wasa juvenile in conflict with law. Accordingly, by the order dated 8[th] February2021, this Court directed the learned District and Sessions Judge to holdan inquiry into the said plea. finding was rendered by the learnedDistrict and Sessions Judge holding that on the date of commission ofthe offence, appellant no.3 Diwan Singh (accused no.3) was juvenilein conflict with law. Therefore, by the order dated 1[st] July 2021, theconviction of appellant no.3 was set aside and the present appeal to thatextent was allowed.

4. We may note here that for the same incident, two separateFirst Information Reports (FIRs) were registered. The first FIR wasagainst all the five accused for all the IPC offences and the second FIRwas against appellant no.2 (accused no.2) for the offence punishableunder Section 25 of the Arms Act.

5. The prosecution case, in brief, is that on 6[th] December 2000 atabout 1.30 pm, the informant Atar Singh (PW-1) was carrying soil forlevelling lane by his bullock cart. When he reached near the house ofShankar, accused no.1 Kalicharan and his sons, Yaad Prakash (accusedno.2), and Diwan Singh (accused no.3) resisted PW-1 and forced him toturn back his bullock cart. There was an altercation between accusednos.1 to 3 and PW-1. The said three accused went back to their houseand came back with weapons. The allegation is that the accused Bangalicame with chura (razor). Accused no.1 was carrying lathi. Accusedno.2 Yaad Prakash was carrying country-made pistol of 315 bores.Accused no.3 Diwan Singh and accused no.4 Shakuntala Devi werecarrying axe in their hands. Accused no.4 Shakuntala Devi is the wife ofaccused no.1 and mother of accused nos. 2 and 3. The allegation madein the FIR is that accused no.2 fired four to five shots from his country-made pistol which hit deceased Harpal Singh who died on the spot. As aresult of this incident, the conflict started and the accused Bangali whowas armed with razor attacked PW-1’s sister Rani, who succumbedto the injuries caused by Bangali. Malkhan Singh, Ram Autar, Smt. Saroj,

ASmt. Rajni and Smt. Rani Devi came to rescue the deceased Rani.However, the said persons were attacked by accused nos.1,3 and 4 withweapons in their hands. These persons suffered injuries at the hands ofthe said three accused. The accused nos. 2 and 4 also sustained injuriesin the fight. It must be noted here that though in the FIR, case wasmade out that deceased Harpal Singh died to bullet injuries caused byBbullets fired by accused no.2 Yaad Prakash, in the evidence, theprosecution witnesses and in particular PW-1, deposed that due tocommotion caused by firing of shots by accused no.2, Harpal Singh felldown and later on he was attacked by the other accused. The injuriescaused by sharp weapons led to his death. Apart from the evidence ofCrecovery, the prosecution mainly relied upon the evidence of eye-witnesses of PW-1 Attar Singh and PW-2 Malkhan Singh who wereallegedly injured at the hands of the accused.

SUBMISSIONS

6. Shri Rakesh Khanna, the learned senior counsel appearing forDthe appellants pointed out at the outset that one of the five accused,Diwan Singh has been acquitted by this Court and therefore, only fouraccused were involved in the incident. He, therefore, submitted that theallegation of unlawful assembly made by the prosecution cannot beaccepted as there was no assembly of five or more persons. He, therefore,Esubmitted that Sections 148 and 149 of IPC could not be invoked. Heinvited our attention to the fourth charge framed against the accused.He pointed out that the said charge alleges that accused no.2 Yaad Prakashopened fire with country-made revolver and the bullet injury sustainedby Harpal Singh caused his death. He pointed out that there was nocharge framed that the accused killed Harpal Singh after he fell downFby using weapons in their hands. He submitted that as can be seen fromthe judgments of the Sessions Court and High Court, it has been heldthat Harpal Singh did not receive any firearm injury but he sufferedinjuries due to the assault made by the accused nos.1,2 and 4 by weaponsin their hands. He submitted that the accused were misled due to theGfailure to frame proper charge. He submitted that though PW-1 andPW-2 deposed that Harpal Singh is not the victim of bullet injury causedby the firearm used by accused no.2, while recording statements of theaccused under Section 313, the only circumstance put to the accused isthat Harpal Singh died due to four to five shots fired by accused no.2,Yaad Prakash. He pointed out that the circumstance that the accusedH

attacked Harpal Singh with the weapons in their hands which ultimatelycause the death of Harpal Singh has not been put to the accused persons.He submitted that serious prejudice has been caused to the accuseddue to the failure to frame proper charge and by failure to put materialcircumstances to the accused in their statement under Section 313 ofCrPC. He, therefore, submitted that the conviction of the appellantsnos.1,2 and 4 is vitiated and they deserve to be acquitted. He also pointedout that the applications for grant of exemption from surrenderingmade by the appellants were rejected by this Court by order dated 29[th]July 2019. The custody certificates show that appellants nos.1,2 and 4are in custody since 19[th] August 2019.

7. Shri Vinod Diwakar, learned Additional Advocate General forthe State of Uttar Pradesh firstly submitted that the advocate for theaccused had cross-examined the material prosecution witnesses includingthe two eye-witnesses on the prosecution case that Harpal Singh dieddue to assault made by the appellant nos.1,2 and 4 by the weapons intheir hands. Therefore, there was no prejudice caused to them on accountof the failure of the Court to frame proper charge. Moreover, theappellants were aware of the prosecution case as reflected in the evidenceof PW-1 and PW-2 and therefore, the failure of the learned Trial Judgeto put the circumstance to them in their statement under Section 313 isnot at all fatal. He submitted that both the Courts have believed thetestimony of PW-1 and PW-2. He submitted that injuries on the personof deceased Harpal Singh and injuries found on the injured personsincluding PW-1 and PW-2 were consistent with the prosecution case.He would, therefore, submit that no interference is called for in thisappeal as two persons have been brutally murdered and several otherswere injured.

CONSIDERATION OF SUBMISSIONS

APPLICABILITY OF SECTIONS 148 AND 149 OF IPC

8. We have given careful consideration to the submission. Aspointed out earlier, the present appellants were convicted for the offencepunishable under Section 148 of IPC. All of them were convicted for theoffences punishable under Sections 302 and 307 with the aid of Section149. The condition precedent for attracting offences punishable underSections 148 and 149 is that there should be an unlawful assembly asprovided in Section 141 of IPC. Section 141 of IPC defines “unlawful

Aassembly” to mean an assembly of five or more persons. In this case,the four appellants and accused Bangali were named in the charge sheet.As noted earlier, appellant no.3 - accused no.3 Diwan Singh was acquittedby this Court by order dated 1[st] July 2021 by setting aside the convictionas against him. Therefore, for considering the question whether therewas an unlawful assembly, appellant no.3 Diwan Singh will have to beBkept out of consideration. Then only four accused remain. Hence, thecharge under Sections 148 and 149 of IPC cannot be sustained.

EFFECT OF OMISSION TO FRAME PROPER CHARGEAND OMISSION TO PUT RELEVANT CIRCUMSTANCES TOACCUSED IN THEIR STATEMENT UNDER SECTION 313COF CRPC.

9. Now, we turn to the charge framed by the Trial Court againstthe accused. The only charges framed for the offence under Section302 of IPC in relation to deceased Harpal Singh were the third andfourth charges. The official English translation of the said two chargesDmade by the High Court reads thus:

“Third : That on the above said date, time and place, you theaccused Yaad Prakash opened 45-5 gunshots with thecountry pistol holding in your hand at the complainant AtarSingh and his family members with intention to kill themEthat hit to the cousin brother of complainant namely HarpalSingh. Thus, you the accused Yaadram committed themurder of Harpal Singh. Thus, you have committed offensepunishable under Section 302 IPC which is within the cognizanceof this Court.

Fourth : That on the above said date, time and place, you theaccused Yaad Prakash out of the accused persons, hadopened fire with country pistol at Harpal Singh infurtherance of your common object and committed murderof Harpal Singh on the spot which is punishable offense u/s302/149/IPC and is within the cognizance of the Court.”

(emphasis added)

10. Thus, both the charges allege that appellant no.2 Yaad Prakash(accused no.2) fired 4-5 gunshots with his country-made pistol which hitHarpal Singh and therefore, Harpal Singh was killed by accused no.2.HThat is the third charge framed by the Trial Court. The fourth charge

was again on the basis of the allegation that it was the injury caused bybullets fired from the country-made pistol of accused no.2 which causedthe death of Harpal Singh. The fourth charge indicates that the otheraccused were roped in only with the aid of Section 149 of IPC.

11. FIR was lodged on the basis of written report made by PW-1 Attar Singh which was reduced in writing by one Murari Lal, policeconstable. The official translation of the material part of the allegationsin the said written report reads thus:

“....Thereafter, the accused persons went to their home and thenKalicharan armed with lathi, his sons namely Yad Prakash armedwith country made pistol (315), Bangali armed with chhura andDiwan Singh armed with knife and Kalicharan’s wife Smt.Shakuntala Devi armed with an axe came on the spot with commonobject. On the noise, Harpal S/o Shriram, Smt. Rani Devi daughterof Mahipal, Malkhan Singh, Ram Autar S/o Mahilal, Smt. Sarojw/o Dhawal Singh, Smt. Rajni wife of Ved Prakash, Smt. RaniDevi wife of Atar Singh, Shriram s/o Mewaram, Ved Prakash s/o Mahipal, Satpal S/o Chhitar? Singh and Amar Singh s/o Shriramof our family arrived there. Thereon, accused Kalicharan exhortedsaying, ‘DEKHTE KYA HO SALO KO JAAN SE MAARDAALO (what are you looking for, kill the bastard).” Thereupon,accused Yad Prakash fired 4-5 shorts on us with his countrymade pistol with intention to kill, which hit my cousin HarpalSingh. Due to it, Harpal Singh died on the spot….”

(emphasis added)

12. As noted earlier, only two eye-witnesses, namely, PW-1 AttarSingh, the informant and PW-2 Malkhan Singh were examined by theprosecution. PW-1 in his deposition before the Court proved his writtenstatement on the basis of which FIR was registered. The Englishtranslation of the material part of his examination-in-chief reads thus:

“Kalicharan had lathi in his hand, Yaad Prakash had country madepistol, Bengali had dagger (chura). Diwan Singh had knife andShakuntala Devi had axe. As they arrived, Kalicharan exhortedthem to open fire. Thereupon, accused Yaad Prakash opened 4-5fires and hearing the noise of fire, my family members namelyMalkhan Singh, Ramavtar, Saroj, Rajni, my sister Rani Devi andmy wife Rani, Harpal Singh and others had come. When stampede

Aensued due to fire then Harpal Singh fell down and the aforesaidaccused persons assaulted Harpal with their respective weaponsas result of which Harpal died on spot.”

13. In the cross-examination, PW-1 stated that as accused no.2had fired 4-5 gunshots, stampede ensued. He stated that Harpal fellBdown but he was not aware whether bullets hit him or not. However, heaccepted that in the First Information Report, he had stated that thegunshots fired by the accused no.2 hit Harpal Singh who died on thespot.

14. PW-2 Malkhan Singh is the only other eyewitness. He alsoCcame out with the same version in his examination-in-chief. He stated inthe cross-examination that he was not aware whether Harpal Singh felldown due to bullet injury.

15. We have quoted the third charge above which is based on theallegation in the FIR that Harpal Singh suffered injuries due to bulletsDfired by accused no.2 and that he died due to the bullet injuries. There isno charge framed that the death of Harpal Singh was caused due toassault made by accused nos.1,2 and 4 (present appellants). As notedby both the Courts, PW 3 Dr. R.K. Daware who performed the post-mortem on the body of deceased Harpal Singh stated that he sufferedinjuries caused by sharp-edged weapons like knives and chura. NeitherEhe deposed that there were bullet injuries nor did post-mortem notesrecord such injuries.

16. There are provisions made in CrPC in Chapter XVII regardingthe framing of charge. The object of the said provisions is obviously tomake the accused aware of the accusations against him on the basis ofFwhich the prosecution is seeking to convict him. The object of theprovisions regarding the framing of charge is that accused should be in aposition to effectively defend himself. An accused can properly defendhimself provided he is clearly informed about the nature of the allegationsagainst him before the actual trial starts. That is why there are elaborateGprovisions in CrPC in that behalf. Sub-section (1) of Section 212 is materialfor our consideration which reads thus:“212. Particulars as to time, place and person.—(1) Thecharge shall contain such particulars as to the time and place ofthe alleged offence, and the person (if any) against whom, or thething (if any) in respect of which, it was committed, as areH

reasonably sufficient to give the accused notice of the matterwith which he is charged.

What is more important for this case is Section 213 which reads

thus:

“213. When manner of committing offence must be stated.—When the nature of the case is such that the particulars mentionedin sections 211 and 212 do not give the accused sufficient noticeof the matter with which he is charged, the charge shall also containsuch particulars of the manner in which the alleged offence wascommitted as will be sufficient for that purpose.”

17. The emphasis is on giving details of the manner of committingoffence. Unless the particulars such as specific Sections of the penalstatute as well as the time and place of the commission of the allegedoffence are incorporated in the charge, the accused will not be in aposition to properly defend himself. Even these particulars may not beenough in many cases to enable the accused to properly defend himself.That is why there is specific requirement incorporated in Section 213that if the particulars mentioned in Sections 211 and 212 do not give theaccused sufficient notice of the matter with which he is charged, thecharge shall also contain such particulars of the manner in which thealleged offence was committed as will be sufficient for that purpose.Illustration (e) to Section 213 provides that when the charge contains anallegation that ‘A’ is accused of the murder of ‘B’ at given time andplace, the charge need not state the manner in which ‘A’ murdered ‘B’.Going by the charge framed in this case, it is alleged therein that it wasaccused no.2 who murdered deceased Harpal Singh by firing bulletsfrom his pistol. Though the case of the prosecution as can be seen fromthe evidence is that accused nos.1, 3 and 4 committed the murder ofHarpal Singh by using sharp weapons in their hand, there is no chargeframed against accused nos.1, 3 and 4 alleging that they murdered HarpalSingh. As there is no charge framed against accused nos.1,3 and 4 ofcommitting the murder of Harpal Singh, Illustration (e) will not apply.Therefore, it was necessary to frame charge in terms of Section 213by stating the manner of committing the offence of murder by accusednos. 1,3 and 4.

18. There are two provisions in CrPC that deal with errors oromissions in framing charge. The said provisions are Sections 215 and464 which reads thus:

A“215. Effect of errors.— No error in stating either the offenceor the particulars required to be stated in the charge, and noomission to state the offence or those particulars, shall be regardedat any stage of the case as material, unless the accused was infact misled by such error or omission, and it has occasioned afailure of justice.”B

464. Effect of omission to frame, or absence of, or error in,charge.—(1) No finding, sentence or order by Court ofcompetent jurisdiction shall be deemed invalid merely on the groundthat no charge was framed or on the ground of any error, omissionor irregularity in the charge including any misjoinder of charges,Cunless, 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,—

D(a) in the case of an omission to frame charge, order that acharge be framed, and that the trial be recommended 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:E

Provided that if the Court is of opinion that the facts of the caseare such that no valid charge could be preferred against the accusedin respect of the facts proved, it shall quash the conviction.”

19. Section 215 lays down when errors in the particulars requiredFto be stated in the charge can be treated as material. It lays down thatthe error cannot be said to be material unless the accused was misled bysuch error or omission and that such error or omission has caused afailure of justice. Section 464 deals with the effect of error or omissionmade while framing charges on the finding and sentence of the competentCourt. The Section provides that the finding and sentence of the CourtGcannot be invalid merely on the ground of error in framing charge oromission in framing charge. The finding and sentence will be invalid onlyif in the opinion of the Court of appeal, the error or omission hasoccasioned failure of justice.

20. When the Court of appeal is called upon to decide whetherany failure of justice has been occasioned due to omission to frame acharge or error in the charge, the Court is duty bound to examine theentire record of the trial including all exhibited documents, depositionsand the statements of the accused recorded under Section 313.

21. At this stage, we must refer to the requirement of theexamination of the accused under Section 313 of CrPC. Section 313 ofCrPC reads thus:-

“313. Power to examine the accused.—(1) In every inquiryor trial, for the purpose of enabling the accused personallyto explain any circumstances appearing in the evidenceagainst him, the Court—

(a) may at any stage, without previously warning the accusedput such questions to him as the Court considers necessary;

(b) shall, after the witnesses for the prosecution have beenexamined and before he is called on for his defence, questionhim generally on the case:

Provided that in summons-case, where the Court has dispensedwith the personal attendance of the accused, it may also dispensewith his examination under clause (b).

(2) No oath shall be administered to the accused when he isexamined under sub-section (1).

(3) The accused shall not render himself liable to punishment byrefusing to answer such questions, or by giving false answers tothem.

(4) The answers given by the accused may be taken intoconsideration in such inquiry or trial, and put in evidence for oragainst him in any other inquiry into, or trial for, any other offencewhich such answers may tend to show he has committed.

[(5) The Court may take help of Prosecutor and Defence Counselin preparing relevant questions which are to be put to the accusedand the Court may permit filing of written statement by the accusedas sufficient compliance of this section.]”

The questions in separate statements of the accused nos. 1 to 4recorded by the Trial Court are almost identical. Question no.5 is the

Aonly question put to them about the evidence adduced against them onthe charge of murder of Harpal Singh. Question no.5 put to accusedno.3 reads thus:-

“Ques 5 – That it has come up in prosecution evidence that onbeing exhorted by accused Kalicharan, accused Yaad PrakashBfired 4-5 shots at complainant Atar Singh and his familymembers with his country made pistol with intention to kill,that hit complainant’s cousin Harpal Singh and he died onthe spot. What do you have to say in this regard?”

(emphasis added)

C22. Such case was not at all made out by the prosecution in theevidence before the Court. The material brought on record by theprosecution witnesses (PW-1 and PW-2) is to the effect that HarpalSingh died due to injuries sustained as result of an attack made byaccused nos.1,3 and 4 on him by sharp weapons. These materialDcircumstances brought on record against the accused on which theirconviction is based were never put to the accused. What was put to theaccused was not the case made out by the prosecution in the evidence.No questions are asked in the Section 313 statement about the post-mortem of the body of Harpal Singh. It is not put to the witness that thecause of death of Harpal Singh was due to haemorrhage and shock as aEresult of injuries caused by sharp weapons. Questioning an accusedunder Section 313 CrPC is not an empty formality. The requirement ofSection 313 CrPC is that the accused must be explained the circumstancesappearing in the evidence against him so that accused can offer anexplanation. After an accused is questioned under Section 313 CrPC, heFis entitled to take call on the question of examining defence witnessesand leading other evidence. If the accused is not explained the importantcircumstances appearing against him in the evidence on which hisconviction is sought to be based, the accused will not be in position toexplain the said circumstances brought on record against him. He willnot be able to properly defend himself. In paragraph 21 of the decisionGof this Court in the case of Jai Dev v. State of Punjab[1], it was heldthus:-

“21. In support of his contention that the failure to put the relevantpoint against the appellant Hari Singh would affect the final

conclusion of the High Court, Mr Anthony has relied on decisionof this Court in Hate Singh Bhagat Singh v. State of MadhyaBharat [1951 SCC 1060 : AIR 1953 SC 468]. In that case, thisCourt has no doubt referred to the fact that it was important toput to the accused each material fact which is intended to be usedagainst him and to afford him chance of explaining it if he can.But these observations must be read in the light of the otherconclusions reached by this Court in that case. It would, we think,be incorrect to suggest that these observations are intended to laydown general and inexorable rule that wherever it is found thatone of the points used against the accused person has not beenput to him, either the trial is vitiated or his conviction is renderedbad. The examination of the accused person under Section342 is undoubtedly intended to give him an opportunity toexplain any circumstances appearing in the evidence againsthim. In exercising its powers under Section 342, the courtmust take care to put all relevant circumstances appearingin the evidence to the accused person. It would not beenough to put few general and broad questions to theaccused, for by adopting such course the accused maynot get opportunity of explaining all the relevantcircumstances. On the other hand, it would not be fair or rightthat the court should put to the accused person detailed questionswhich may amount to his cross-examination. The ultimate testin determining whether or not the accused has been fairlyexamined under Section 342 would be to enquire whether,having regard to all the questions put to him, he did get anopportunity to say what he wanted to say in respect ofprosecution case against him. If it appears that theexamination of the accused person was defective andthereby prejudice has been caused to him, that would nodoubt be serious infirmity. It is obvious that no general rulecan be laid down in regard to the manner in which the accusedperson should be examined under Section 342. Broadly stated,however, the true position appears to be that passion for brevitywhich may be content with asking few omnibus general questionsis as much inconsistent with the requirements of Section 342 asanxiety for thoroughness which may dictate an unduly detailed

ABC

DEF

Aand large number of questions which may amount to the cross-examination of the accused person. Besides, in the present case,as we have already shown, failure to put the specific point ofdistance is really not very material.”

(emphasis added)

BIn paragraph 145 of the well known decision of this Court in thecase of Sharad Birdhichand Sarda v. State of Maharashtra[2], it washeld thus:

“145. It is not necessary for us to multiply authorities on thispoint as this question now stands concluded by several decisionsCof this Court. In this view of the matter, the circumstanceswhich were not put to the appellant in his examination underSection 313 of the Criminal Procedure Code, 1973 have tobe completely excluded from consideration.”

(emphasis added)

23. Now coming to the facts of the case, not only that chargewas not framed on the allegation that the death of Harpal Singh wascaused due to assault physically made by the accused and in particularaccused nos. 1,2 and 4 by use of sharp weapons, misleading chargewas framed that Harpal Singh died due to bullet injuries sustained by theEbullets fired by the accused no.2 with pistol in his hand. There is everypossibility of the accused getting misled due to the framing of such acharge and omission to frame the correct charge. What is more seriousis that though the prosecution case made out during the trial clearlyindicated that the death of Harpal Singh was not caused due to anyFbullet injury, the circumstance put to all the accused under Section 313was that the death of Harpal Singh was caused due to four to five shotsfired by accused no.2 by country-made pistol. In fact, question no.5 inthe statement of the accused under Section 313 clearly records that thebullets fired by accused no.2 hit Harpal Singh and he died on the spot.As can be seen from the oral evidence, the post-mortem reports andGexamination of the doctor, Harpal Singh did not receive any bullet injury.Still, the said allegation was put to all the accused in the examinationunder Section 313. Thus, not only that the charge framed was misleading,but most material circumstance brought on record against the accused

in the evidence that Harpal Singh died due to injuries caused by theattack made by accused nos.1,3 and 4 was not put any of the accused.Thus, not only that the charge was misleading but the accused had noopportunity to explain the circumstance in which Harpal Singh wasallegedly killed which was brought on record during the trial. Therefore,in the facts of the case, by reason of omission to frame proper chargein terms of Section 213 of CrPC, and by reason of not putting importantcircumstances appearing in the evidence in the statement under Section313 caused serious prejudice to the accused. The prejudice, in the factsof the case, has occasioned failure of justice.

24. Therefore, we considered whether the case can be remandedfor framing of proper charge and for recording additional statementsof the accused under Section 313. But the incident is of December 2000.Therefore, it will be unfair to the accused if they are called upon toanswer the circumstances appearing against them in evidence about theincident which has taken place more than 22 years back. In fact, such acourse will cause serious prejudice to the accused.

25. In the circumstances, the charge of committing the murder ofHarpal Singh against accused nos. 1,2 and 4 cannot be substantiated.The accused nos. 1,2 and 4 were convicted for the offences under Section307 of IPC with the aid of Section 149. However, Section 149 will notapply in this case. We may also note that the accused nos. 1,2 and 4were in jail from 19[th] August 2019. Therefore, all of them had undergonea sentence for more than three years and four months. Accused no.2was sentenced to undergo rigorous imprisonment for two years for theoffence punishable under Section 25 of the Arms Act which he hasalready undergone.

26. Accused Bangali has not preferred any appeal. We may notehere that the accused Bangali was convicted under Section 302 of IPCfor committing the murder of Rani without the aid of Section 149 ofIPC.

27. Hence, the appeal must succeed. We set aside the impugnedjudgments of the Sessions Court as well as the High Court to the extentto which accused no.1 Kalicharan, accused no.2 Yaad Prakash andaccused no.4, Smt. Shakuntala Devi were convicted. They shall beforthwith set at liberty unless they are required to be detained in

Aconnection with any other offence. As noted earlier, accused no.3 DiwanSingh has already been acquitted under the order dated 1[st] July 2021.

28. The appeal is, accordingly, allowed.

BAnkit Gyan

Appeal allowed.