Kalicharan vs The State Of Uttar Pradesh

Kalicharan & Ors. … Appellants

v.

State of Uttar Pradesh ... Respondent

J U D G M E N T

ABHAY S. OKA, J.

FACTUAL DETAILS

1. Mainly two issues arise in this appeal. The first issue is

regarding the omission to frame a proper charge in accordance

with Section 213 of the Code of Criminal Procedure, 1973 (for

short, ‘CrPC’). The second issue is of the consequence of the Signature Not Verified Digitally signed by

failure of the learned Trial Judge to put material circumstances NEETA SAPRA Date: 2022.12.14 17:28:18 IST Reason:

brought on record in the prosecution evidence to the accused in

1 their statements under Section 313 of CrPC. In short, this

Court will have to examine whether there is a failure to comply

with the requirements of Sections 213 and 313 of CrPC. If the

answer to the said question is in the affirmative, the next

question will be whether prejudice has been caused to the

accused due to failure to comply with the aforesaid provisions

and whether it has caused a failure of justice.

2. The present appeal arises out of the judgment and order of

the Fast Track Sessions Court at Bulandshahr. The Fast Track

Court convicted the accused Bangali who is not before this Court

for the offences punishable under Section 148 of the Indian

Penal Code (for short, ‘IPC’), Section 302 of IPC as well as

Section 307 read with Section 149 of IPC. The Fast Track Court

convicted Kalicharan (accused no.1), Yaad Prakash (accused

no.2), Diwan Singh (accused no.3), and Smt. Shakuntala Devi

(accused no.4) for the offences punishable under Section 148 of

IPC, Section 302 read with Section 149 of IPC and Section 307

read with Section 149 of IPC. Yaad Prakash (accused no.2) was

also convicted for the offence punishable under Section 25 of the

2 Arms Act, 1959. Two separate appeals were preferred before the

High Court of Judicature at Allahabad. One appeal was

preferred by the accused Bangali and the other one was

preferred by accused nos.1 to 4. By the impugned 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 that appellant no.3 Diwan Singh (accused no.3) raised a

plea in the present appeal that on the date of the commission of

the alleged offence, he was a juvenile in conflict with law.

Accordingly, by the order dated 8th February 2021, this Court

directed the learned District and Sessions Judge to hold an

inquiry into the said plea. A finding was rendered by the learned

District and Sessions Judge holding that on the date of

commission of the offence, appellant no.3 Diwan Singh (accused

no.3) was a juvenile in conflict with law. Therefore, by the order

dated 1st July 2021, the conviction of appellant no.3 was set

aside and the present appeal to that extent was allowed.

3

4. We may note here that for the same incident, two separate

First Information Reports (FIRs) were registered. The first FIR

was against all the five accused for all the IPC offences and the

second FIR was against appellant no.2 (accused no.2) for the

offence punishable under Section 25 of the Arms Act.

5. The prosecution case, in brief, is that on 6th December

2000 at about 1.30 pm, the informant Atar Singh (PW-1) was

carrying soil for levelling a lane by his bullock cart. When he

reached near the house of Shankar, accused no.1 Kalicharan

and his sons, Yaad Prakash (accused no.2), and Diwan Singh

(accused no.3) resisted PW-1 and forced him to turn back his

bullock cart. There was an altercation between accused nos.1 to

3 and PW-1. The said three accused went back to their house

and came back with weapons. The allegation is that the accused

Bangali came with a chura (razor). Accused no.1 was carrying a

lathi. Accused no.2 Yaad Prakash was carrying a country-made

pistol of 315 bores. Accused no.3 Diwan Singh and accused no.4

Shakuntala Devi were carrying axe in their hands. Accused no.4

Shakuntala Devi is the wife of accused no.1 and mother of

4 accused nos. 2 and 3. The allegation made in 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

a result of this incident, the conflict started and the accused

Bangali who was armed with a razor attacked PW-1’s sister Rani,

who succumbed to the injuries caused by Bangali. Malkhan

Singh, Ram Autar, Smt. Saroj, Smt. Rajni and Smt. Rani Devi

came to rescue the deceased Rani. However, the said persons

were attacked by accused nos.1,3 and 4 with weapons in their

hands. These persons suffered injuries at the hands of the said

three accused. The accused nos. 2 and 4 also sustained injuries

in the fight. It must be noted here that though in the FIR, a case

was made out that deceased Harpal Singh died to bullet injuries

caused by bullets fired by accused no.2 Yaad Prakash, in the

evidence, the prosecution witnesses and in particular PW-1,

deposed that due to commotion caused by firing of shots by

accused no.2, Harpal Singh fell down and later on he was

attacked by the other accused. The injuries caused by sharp

weapons led to his death. Apart from the evidence of recovery,

5 the prosecution mainly relied upon the evidence of eye-witnesses

of PW-1 Attar Singh and PW-2 Malkhan Singh who were

allegedly injured at the hands of the accused.

SUBMISSIONS

6. Shri Rakesh Khanna, the learned senior counsel appearing

for the appellants pointed out at the outset that one of the five

accused, Diwan Singh has been acquitted by this Court and

therefore, only four accused were involved in the incident. He,

therefore, submitted that the allegation of unlawful assembly

made by the prosecution cannot be accepted as there was no

assembly of five or more persons. He, therefore, submitted that

Sections 148 and 149 of IPC could not be invoked. He invited

our attention to the fourth charge framed against the accused.

He pointed out that the said charge alleges that accused no.2

Yaad Prakash opened fire with a country-made revolver and the

bullet injury sustained by Harpal Singh caused his death. He

pointed out that there was no charge framed that the accused

killed Harpal Singh after he fell down by using weapons in their

6 hands. He submitted that as can be seen from the judgments of

the Sessions Court and High Court, it has been held that Harpal

Singh did not receive any firearm injury but he suffered injuries

due to the assault made by the accused nos.1,2 and 4 by

weapons in their hands. He submitted that the accused were

misled due to the failure to frame proper charge. He submitted

that though PW-1 and PW-2 deposed that Harpal Singh is not

the victim of bullet injury caused by the firearm used by accused

no.2, while recording statements of the accused under Section

313, the only circumstance put to the accused is that Harpal

Singh died due to four to five shots fired by accused no.2, Yaad

Prakash. He pointed out that the circumstance that the accused

attacked Harpal Singh with the weapons in their hands which

ultimately cause the death of Harpal Singh has not been put to

the accused persons. He submitted that a serious prejudice has

been caused to the accused due to the failure to frame proper

charge and by failure to put material circumstances to the

accused in their statement under Section 313 of CrPC. He,

therefore, submitted that the conviction of the appellants nos.1,2

7 and 4 is vitiated and they deserve to be acquitted. He also

pointed out that the applications for a grant of exemption from

surrendering made by the appellants were rejected by this Court

by order dated 29th July 2019. The custody certificates show

that appellants nos.1,2 and 4 are in custody since 19 th August

2019.

7. Shri Vinod Diwakar, learned Additional Advocate General

for the State of Uttar Pradesh firstly submitted that the advocate

for the accused had cross-examined the material prosecution

witnesses including the two eye-witnesses on the prosecution

case that Harpal Singh died due to assault made by the

appellant nos.1,2 and 4 by the weapons in their hands.

Therefore, there was no prejudice caused to them on account of

the failure of the Court to frame a proper charge. Moreover, the

appellants were aware of the prosecution case as reflected in the

evidence of PW-1 and PW-2 and therefore, the failure of the

learned Trial Judge to put the circumstance to them in their

statement under Section 313 is not at all fatal. He submitted

that both the Courts have believed the testimony of PW-1 and

8 PW-2. He submitted that injuries on the person of deceased

Harpal Singh and injuries found on the injured persons

including PW-1 and PW-2 were consistent with the prosecution

case. He would, therefore, submit that no interference is called

for in this appeal as two persons have been brutally murdered

and several others were injured.

CONSIDERATION OF SUBMISSIONS

APPLICABILITY OF SECTIONS 148 AND 149 OF IPC

8. We have given careful consideration to the submission. As

pointed out earlier, the present appellants were convicted for the

offence punishable under Section 148 of IPC. All of them were

convicted for the offences punishable under Sections 302 and

307 with the aid of Section 149. The condition precedent for

attracting offences punishable under Sections 148 and 149 is

that there should be an unlawful assembly as provided in

Section 141 of IPC. Section 141 of IPC defines “unlawful

assembly” 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 9 Diwan Singh was acquitted by this Court by order dated 1 st July

2021 by setting aside the conviction as against him. Therefore,

for considering the question whether there was an unlawful

assembly, appellant no.3 Diwan Singh will have to be kept out of

consideration. Then only four accused remain. Hence, the

charge under Sections 148 and 149 of IPC cannot be sustained.

EFFECT OF OMISSION TO FRAME PROPER CHARGE AND OMISSION TO PUT RELEVANT CIRCUMSTANCES TO ACCUSED IN THEIR STATEMENT UNDER SECTION 313 OF CRPC.

9. Now, we turn to the charge framed by the Trial Court

against the accused. The only charges framed for the offence

under Section 302 of IPC in relation to deceased Harpal Singh

were the third and fourth charges. The official English

translation of the said two charges made by the High Court

reads thus:

“Third : That on the above said date, time and place, you the accused Yaad Prakash opened 45-5 gunshots with the country pistol holding in your hand at the complainant Atar Singh and his family members with intention to kill them that hit to the cousin brother of complainant namely Harpal Singh. Thus, you the accused Yaadram committed the murder of Harpal Singh. Thus, you have 10 committed offense punishable under Section 302 IPC which is within the cognizance of this Court.

Fourth : That on the above said date, time and place, you the accused Yaad Prakash out of the accused persons, had opened fire with country pistol at Harpal Singh in furtherance of your common object and committed murder of Harpal Singh on the spot which is punishable offense u/s 302/149/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 hit Harpal Singh and therefore, Harpal Singh

was killed by accused no.2. That 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 by bullets fired from the

country-made pistol of accused no.2 which caused the death of

Harpal Singh. The fourth charge indicates that the other

accused were roped in only with the aid of Section 149 of IPC.

11. FIR was lodged on the basis of a written report made by

PW-1 Attar Singh which was reduced in writing by one Murari

11 Lal, a police constable. The official translation of the material

part of the allegations in the said written report reads thus:

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

12. As noted earlier, only two eye-witnesses, namely, PW-1

Attar Singh, the informant and PW-2 Malkhan Singh were

examined by the prosecution. PW-1 in his deposition before the

Court proved his written statement on the basis of which FIR

12 was registered. The English translation of the material part of

his examination-in-chief reads thus:

“Kalicharan had lathi in his hand, Yaad Prakash had country made pistol, Bengali had dagger (chura). Diwan Singh had knife and Shakuntala Devi had axe. As they arrived, Kalicharan exhorted them to open fire. Thereupon, accused Yaad Prakash opened 4-5 fires and hearing the noise of fire, my family members namely Malkhan Singh, Ramavtar, Saroj, Rajni, my sister Rani Devi and my wife Rani, Harpal Singh and others had come. When stampede ensued due to fire then Harpal Singh fell down and the aforesaid accused persons assaulted Harpal with their respective weapons as a result of which Harpal died on spot.”

13. In the cross-examination, PW-1 stated that as accused no.2

had fired 4-5 gunshots, a stampede ensued. He stated that

Harpal fell down but he was not aware whether bullets hit him or

not. However, he accepted that in the First Information Report,

he had stated that the gunshots fired by the accused no.2 hit

Harpal Singh who died on the spot.

14. PW-2 Malkhan Singh is the only other eyewitness. He also

came out with the same version in his examination-in-chief. He

13 stated in the cross-examination that he was not aware whether

Harpal Singh fell down due to a bullet injury.

15. We have quoted the third charge above which is based on

the allegation in the FIR that Harpal Singh suffered injuries due

to bullets fired by accused no.2 and that he died due to the

bullet injuries. There is no charge framed that the death of

Harpal Singh was caused due to assault made by accused

nos.1,2 and 4 (present appellants). As noted by both the Courts,

PW 3 Dr. R.K. Daware who performed the post-mortem on the

body of deceased Harpal Singh stated that he suffered injuries

caused by sharp-edged weapons like knives and chura. Neither

he deposed that there were bullet injuries nor did post-mortem

notes record such injuries.

16. There are provisions made in CrPC in Chapter XVII

regarding the framing of charge. The object of the said

provisions is obviously to make the accused aware of the

accusations against him on the basis of which the prosecution is

seeking to convict him. The object of the provisions regarding

the framing of charge is that accused should be in a position to

14 effectively defend himself. An accused can properly defend

himself provided he is clearly informed about the nature of the

allegations against him before the actual trial starts. That is

why there are elaborate provisions in CrPC in that behalf. Sub-

section (1) of Section 212 is material for our consideration which

reads thus:

“212. Particulars as to time, place and person.—(1) The charge shall contain such particulars as to the time and place of the alleged offence, and the person (if any) against whom, or the thing (if any) in respect of which, it was committed, as are reasonably sufficient to give the accused notice of the matter with 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 mentioned in sections 211 and 212 do not give the accused sufficient notice of the matter with which he is charged, the charge shall also contain such particulars of the manner in which the alleged offence was committed as will be sufficient for that purpose.”

15

17. The emphasis is on giving details of the manner of

committing offence. Unless the particulars such as specific

Sections of the penal statute as well as the time and place of the

commission of the alleged offence are incorporated in the charge,

the accused will not be in a position to properly defend himself.

Even these particulars may not be enough in many cases to

enable the accused to properly defend himself. That is why there

is a specific requirement incorporated in Section 213 that if the

particulars mentioned in Sections 211 and 212 do not give the

accused sufficient notice of the matter with which he is charged,

the charge shall also contain such particulars of the manner in

which the alleged offence was committed as will be sufficient for

that purpose. Illustration (e) to Section 213 provides that when

the charge contains an allegation that ‘A’ is accused of the

murder of ‘B’ at a given time and place, 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 was accused no.2

who murdered deceased Harpal Singh by firing bullets from his

pistol. Though the case of the prosecution as can be seen from

16 the evidence is that accused nos.1, 3 and 4 committed the

murder of Harpal Singh by using sharp weapons in their hand,

there is no charge framed against accused nos.1, 3 and 4

alleging that they murdered Harpal Singh. As there is no charge

framed against accused nos.1,3 and 4 of committing the murder

of Harpal Singh, Illustration (e) will not apply. Therefore, it was

necessary to frame a charge in terms of Section 213 by stating

the manner of committing the offence of murder by accused nos.

1,3 and 4.

18. There are two provisions in CrPC that deal with errors or

omissions in framing charge. The said provisions are Sections

215 and 464 which reads thus:

“215. Effect of errors.— No error in stating either the offence or the particulars required to be stated in the charge, and no omission to state the offence or those particulars, shall be regarded at any stage of the case as material, unless the accused was in fact misled by such error or omission, and it has occasioned a failure of justice.”

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

17 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 recommended 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:

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

19. Section 215 lays down when errors in the particulars

required to be stated in the charge can be treated as material. It

lays down that the error cannot be said to be material unless the

accused was misled by such error or omission and that such

error or omission has caused a failure of justice. Section 464

deals with the effect of error or omission made while framing

charges on the finding and sentence of the competent Court. The

Section provides that the finding and sentence of the Court

18 cannot be invalid merely on the ground of error in framing

charge or omission in framing charge. The finding and sentence

will be invalid only if in the opinion of the Court of appeal, the

error or omission has occasioned a failure of justice.

20. When the Court of appeal is called upon to decide whether

any failure of justice has been occasioned due to omission to

frame a charge or error in the charge, the Court is duty bound to

examine the entire record of the trial including all exhibited

documents, depositions and the statements of the accused

recorded under Section 313.

21. At this stage, we must refer to the requirement of the

examination of the accused under Section 313 of CrPC. Section

313 of CrPC reads thus:-

“313. Power to examine the accused.—(1) In every inquiry or trial, for the purpose of enabling the accused personally to explain any circumstances appearing in the evidence against him, the Court—

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

(b) shall, after the witnesses for the prosecution have been examined and before he 19 is called on for his defence, question him generally on the case:

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

(2) No oath shall be administered to the accused when he is examined under sub-section (1). (3) The accused shall not render himself liable to punishment by refusing to answer such questions, or by giving false answers to them.

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

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

The questions in separate statements of the accused nos. 1 to 4

recorded by the Trial Court are almost identical. Question no.5

is the only question put to them about the evidence adduced

against them on the charge of murder of Harpal Singh. Question

no.5 put to accused no.3 reads thus:-

“Ques 5 – That it has come up in prosecution evidence that on being exhorted by accused

20 Kalicharan, accused Yaad Prakash fired 4-5 shots at complainant Atar Singh and his family members with his country made pistol with intention to kill, that hit complainant’s cousin Harpal Singh and he died on the spot. What do you have to say in this regard?” (emphasis added)

22. Such a case was not at all made out by the prosecution in

the evidence before the Court. The material brought on record by

the prosecution witnesses (PW-1 and PW-2) is to the effect that

Harpal Singh died due to injuries sustained as a result of an

attack made by accused nos.1,3 and 4 on him by sharp

weapons. These material circumstances brought on record

against the accused on which their conviction is based were

never put to the accused. What was put to the accused 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 the cause of death of Harpal Singh was due to

haemorrhage and shock as a result of injuries caused by sharp

weapons. Questioning an accused under Section 313 CrPC is not

an empty formality. The requirement of Section 313 CrPC is that

21 the accused must be explained the circumstances appearing in

the evidence against him so that accused can offer an

explanation. After an accused is questioned under Section 313

CrPC, he is entitled to take a call on the question of examining

defence witnesses and leading other evidence. If the accused is

not explained the important circumstances appearing against

him in the evidence on which his conviction is sought to be

based, the accused will not be in a position to explain the said

circumstances brought on record against him. He will not be

able to properly defend himself. In paragraph 21 of the decision

of this Court in the case of Jai Dev v. State of Punjab1, it was

held thus:-

“21. In support of his contention that the failure to put the relevant point against the appellant Hari Singh would affect the final conclusion of the High Court, Mr Anthony has relied on a decision of this Court in Hate Singh Bhagat Singh v. State of Madhya Bharat [1951 SCC 1060 : AIR 1953 SC 468] . In that case, this Court has no doubt referred to the fact that it was important to put to the accused each material fact which is intended to be used against him and to afford him a chance of explaining it if he can. But these observations must be read in the light of the other conclusions

1 (1963) 3 SCR 489

22 reached by this Court in that case. It would, we think, be incorrect to suggest that these observations are intended to lay down a general and inexorable rule that wherever it is found that one of the points used against the accused person has not been put to him, either the trial is vitiated or his conviction is rendered bad. The examination of the accused person under Section 342 is undoubtedly intended to give him an opportunity to explain any circumstances appearing in the evidence against him. In exercising its powers under Section 342, the court must take care to put all relevant circumstances appearing in the evidence to the accused person. It would not be enough to put a few general and broad questions to the accused, for by adopting such a course the accused may not get opportunity of explaining all the relevant circumstances. On the other hand, it would not be fair or right that the court should put to the accused person detailed questions which may amount to his cross-

examination. The ultimate test in determining whether or not the accused has been fairly examined under Section 342 would be to enquire whether, having regard to all the questions put to him, he did get an opportunity to say what he wanted to say in respect of prosecution case against him. If it appears that the examination of the accused person was defective and thereby a prejudice has been caused to him, that would no doubt be a serious infirmity. It is obvious that no general rule can be laid down in regard to the manner in which the accused person should be examined under Section

342. Broadly stated, however, the true position appears to be that passion for brevity which may be content with asking a few omnibus general

23 questions is as much inconsistent with the requirements of Section 342 as anxiety for thoroughness which may dictate an unduly detailed and 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 of distance is really not very material.” (emphasis added)

In paragraph 145 of the well known decision of this Court in the

case of Sharad Birdhichand Sarda v. State of Maharashtra 2, it

was held thus:

“145. It is not necessary for us to multiply authorities on this point as this question now stands concluded by several decisions of this Court. In this view of the matter, the circumstances which were not put to the appellant in his examination under Section 313 of the Criminal Procedure Code, 1973 have to be completely excluded from consideration.” (emphasis added)

23. Now coming to the facts of the case, not only that a charge

was not framed on the allegation that the death of Harpal Singh

was caused due to assault physically made by the accused and

in particular accused nos. 1,2 and 4 by use of sharp weapons, a

misleading charge was framed that Harpal Singh died due to

2 (1984) 4 SCC 116

24 bullet injuries sustained by the bullets fired by the accused no.2

with a pistol in his hand. There is every possibility of the

accused getting misled due to the framing of such a charge and

omission to frame the correct charge. What is more serious is

that though the prosecution case made out during the trial

clearly indicated that the death of Harpal Singh was not caused

due to any bullet injury, the circumstance put to all the accused

under Section 313 was that the death of Harpal Singh was

caused due to four to five shots fired by accused no.2 by a

country-made pistol. In fact, question no.5 in the statement of

the accused under Section 313 clearly records that the bullets

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

and examination of the doctor, Harpal Singh did not receive any

bullet injury. Still, the said allegation was put to all the accused

in the examination under 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 the attack made by

25 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 no

opportunity to explain the circumstance in which Harpal Singh

was allegedly killed which was brought on record during the

trial. Therefore, in the facts of the case, by reason of omission to

frame a proper charge in terms of Section 213 of CrPC, and by

reason of not putting important circumstances appearing in the

evidence in the statement under Section 313 caused serious

prejudice to the accused. The prejudice, in the facts of the case,

has occasioned a failure of justice.

24. Therefore, we considered whether the case can be

remanded for framing of a proper charge and for recording

additional statements of 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 to answer the circumstances

appearing against them in evidence about the incident which

has taken place more than 22 years back. In fact, such a course

will cause serious prejudice to the accused.

26

25. In the circumstances, the charge of committing the murder

of Harpal Singh against accused nos. 1,2 and 4 cannot be

substantiated. The accused nos. 1,2 and 4 were convicted for

the offences under Section 307 of IPC with the aid of Section

149. However, Section 149 will not apply in this case. We may

also note that the accused nos. 1,2 and 4 were in jail from 19 th

August 2019. Therefore, all of them had undergone a sentence

for more than three years and four months. Accused no.2 was

sentenced to undergo rigorous imprisonment for two years for

the offence punishable under Section 25 of the Arms Act which

he has already undergone.

26. Accused Bangali has not preferred any appeal. We may

note here that the accused Bangali was convicted under Section

302 of IPC for committing the murder of Rani without the aid of

Section 149 of IPC.

27. Hence, the appeal must succeed. We set aside the

impugned judgments of the Sessions Court as well as the High

Court to the extent to which accused no.1 Kalicharan, accused

no.2 Yaad Prakash and accused no.4, Smt. Shakuntala Devi

27 were convicted. They shall be forthwith set at liberty unless they

are required to be detained in connection with any other offence.

As noted earlier, accused no.3 Diwan Singh has already been

acquitted under the order dated 1st July 2021.

28. The appeal is, accordingly, allowed.

...………………………J. (Sanjay Kishan Kaul)

…………………………J. (Abhay S. Oka)

New Delhi;

December 14, 2022.

28

ITEM NO.1502 COURT NO.2 SECTION II

S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS

Criminal Appeal No. 122/2021

KALICHARAN & ORS. Appellant(s) VERSUS THE STATE OF UTTAR PRADESH Respondent(s)

([HEARD BY: HON. SANJAY KISHAN KAUL AND HON. ABHAY S. OKA, JJ.] IA No. 24769/2022 - GRANT OF BAIL)

Date : 14-12-2022 This matter was called on for pronouncement of Judgment today.

For Appellant(s) Mr. Rajesh Prasad Singh, AOR Mr. Rakesh K. Khanna, Adv.

Ms. Shefali Jain, Adv.

Mr. Samant Singh, Adv.

Mr. Aditya Pushkal Khanna, Adv.

Ms. Ramya Khanna, Adv.

Mr. Preeja Nair, Adv.

Mr. Rajeev Singh, AOR

For Respondent(s) Mr. Vinod Diwakar, AAG Mr. Sarvesh Singh Baghel, AOR Mr. B.N. Dubey, Adv.

Hon’ble Mr. Justice Abhay S. Oka pronounced the

reportable judgment of the Bench comprising His Lordship and

Hon’ble Mr. Justice Sanjay Kishan Kaul.

The appeal is allowed in terms of signed reportable

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The operative part of the Judgment reads as under:

“….the appeal must succeed. We set aside the impugned judgments of the Sessions Court as well as the High Court to the extent to which accused no.1 Kalicharan, accused no.2 Yaad Prakash and accused no.4, Smt. Shakuntala Devi were convicted. They shall be forthwith set at liberty unless they are required to be detained in connection with any other offence. As noted earlier, accused no.3 Diwan Singh has already been acquitted under the order dated 1st July 2021.

Pending applications, if any, stand disposed of.

(NEETA SAPRA) (POONAM VAID) COURT MASTER (SH) COURT MASTER (NSH)

(Signed reportable judgment is placed on the file)

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