Rafiq Ahmed @ Rafi vs State Of U.P

Rafiq Ahmed @ Rafi ... Appellant

Versus

State of U.P. ... Respondent

J U D G M E N T

Swatanter Kumar, J.

1. Fine distinctions of law, if discerning, should normally be

recognized and permitted to operate in their respective fields.

With the development of criminal jurisprudence, the law has

recognized the concept of cognate charges besides alternative

charges. The differentiation between the offences from the

same family in contradistinction to the offences falling in

different categories have persuaded the courts to apply the

principle of `cognate offences' and punish the offender of a less

grave offence because the offence of greater gravity has not

2

been proved beyond reasonable doubt. This principle is to be

applied keeping in view the facts and circumstances of a given

case and notwithstanding the fact that no charge for such less

grave offence had been framed against the offender. In the

case in hand, we are concerned with a similar question which

arises from the following facts:

All the five accused, namely, Rafiq Ahmad, Ahsan,

Imamuddin, Arun Kumar and Yashwant Singh, according to

the prosecution, in the intervening night of 30th September,

1977 and 1st October, 1977 committed dacoity in Ambassador

Car No.UPS 7293 belonging to Rafiq Ahmad. While the car

was going on the pucca road from Nehtaur to Dhampur within

the jurisdiction of thana Nehtaur, the accused had committed

the murder of Jagdish Prasad @ Jagdish Chandra @ Jagdish

Babu and thereafter thrown his body in a sugarcane field of

one Ikrar Ahmad situated in Village Kashmiri, thana Nehtaur

with the intention of screening themselves from punishment

for committing any offence. Shri Krishna Garg, uncle of the

deceased was carrying on the wholesale business of sugar,

Khandsari, flour, food grains etc. under the name of M/s.

3

Badri Prasad Sunder Lal in Mohalla Bari Mandi, Dhampur

(Bijnor). This firm had branches in the name of `Garg

Brothers'. The firm used to sell the above products on credit

to the customers at Dhampur, Nagina, Sherkot, Sheohara,

Haldaur and Nehtaur and the deceased, Jagdish Prasad, used

to go to Nehtaur every Friday to realize money from them. On

Friday, 30th September, 1977, also he left for Nehtaur to collect

money. Ordinarily, he used to return home between 9.00 p.m.

and 10.00 p.m. with collections roughly upto `10,000/-.

Though, Jagdish Prasad, on that day also had collected more

than ` 8,000/- from the customers, but he did not return

home that night. The next morning, Shri Krishna Garg sent

his Munim, Ramesh Chandra to Nehtaur to enquire about

Jagdish Prasad. The Munim returned and disclosed to Shri

Krishna Garg the above facts. After arrival of the Munim, Shri

Krishna Garg left Dhampur for Nehtaur along with Pyare Lal,

Surendra Kumar, Har Kishan and Kamlesh to enquire about

Jagdish Prasad. From the enquiries, it came to light that at

about 8.00 p.m., the deceased Jagdish Prasad had occupied a

taxi, in which some persons were already sitting, at the Agency

4

Chauraha, Nehtaur. The matter was reported and after

making an entry in the GD on 1st October, 1977 at 2.30 p.m.,

SI K.L. Verma started investigation and interrogated a number

of persons including Shri Krishna Garg and Pyare Lal.

Thereafter, a case was registered under Section 364 of the

Indian Penal Code (IPC). On 2.10.1977, the investigation was

taken up by Station Officer (S.O.) Raj Pal Yadav and both Mr.

Verma and Mr. Yadav left the police station together for

investigation and reached P.S. Dhampur. At about 9.00 pm,

accused Rafiq Ahmad was arrested by the police along with his

taxi No.UPS 7293. His arrest led to recovery of the taxi which

was made in presence of Pyare Lal and Surendra Kumar.

During the course of the investigation, the accused Rafiq

Ahmad also made a confessional statement before the

investigating officer in presence of Surendra Kumar and Pyare

Lal that the dead body of the deceased was lying in the

sugarcane fields near village Kashmiri. The body of the

deceased was, thus, recovered and identified by Pyare Lal. SI

K.L Verma (PW9) prepared the inquest report and the body

was subjected to post mortem by Dr. R.B. Saxena (PW8), the

5

Medical Officer.

On 3rd October, 1977, the accused Ahsan and his brother

Imamuddin were arrested with the help of Zamal Ahmad @

Khan Zamaloo and Sattar. A gold ring was recovered from the

possession of Ahsan. These arrests were effected at about

9.00 pm. Similarly, the accused Yashwant Singh was arrested

by the police from the railway platform at 1.00 am on 2nd

October, 1977.

We may refer to the post-mortem report and the ante-

mortem injuries found by Dr. Saxena (PW8) on the body of the

deceased which are as follows :

"1. Incised wound with chopping of left

ear vertically oblique with = part of

ear missing.

2. Incised wound oblique from above

down wards below left side angle of

jaw to upper neck 1/1/4"X>"X<".

3. Incised wound 6"X1"X bone deep at

front of neck just above Adam's

cartilage.

4. Abrasion <" X <" on back of both

shoulders.

6 5. Abrasion 1/8" X <" on back of right

elbow joint.

6. Abrasion <" X <" on outer side and

back of left elbow.

In the opinion of Dr. Saxena, death

was caused on account of

respiratory failure and hemorrhage

resulting from severing of trachea."

The investigation was completed and the charge-sheet in

accordance with the provisions of Section 173 of the Criminal

Procedure Code (for short `Cr.P.C.') was filed before the court

of competent jurisdiction. The accused were committed to the

Court of Sessions and tried in accordance with law.

The learned Trial Court having considered the material

and the report submitted to it in terms of Section 173 of the

Cr.P.C. and vide order dated 11th September, 1979 framed the

following charge against all the accused, including the present

appellant, Rafiq Ahmad:

" S.T. No.3/78 State VS. Rafiq Etc.

Charge

I Jawant singh III additionaL Sessions Judge,

Bijnour hereby charge you Rafiq, Ahsan,

Imamuddin, Arun Kumar and Yashwant Singh

accused as follows: -

7

That you in the night of 30-9-77 committed

dacoity in Taxi No. UPS 7273 while it was

running on Nehtaur to Dhampur road and that

in the commission of said dacoity murder was

committed by you of one jagdish prashad and

that you thereby committed an offence

punishable u/s 396 IPC and within my

cognizance And I hereby direct that you be

tried by me on the said charge.

Dt.11-9-79 Sd/- Judge

Charge read over and explained in Hindi to the

accused who pleaded not guilty.

Sd/- Judge

Sd/- Rafiq,

Sd/- Ahsan,

Sd/- Imamuddin,

Sd/- Arun Kumar

Sd/- Yashwant Singh"

This charge came to be amended by the learned Trial

Court and the amended charge read as under:

" S.T. No. 3/78

State VS. Rafiq Etc.

Amended Charge

I Jaswant singh III additional Sessions Judge,

Bijnour hereby charge you Rafiq, Ahsan,

Imamuddin, Arun Kumar and Yashwant Singh

accused as follows: -

Firstly that you along with one another during

the night of 30-9-77 and 1-10-77 committed

dacoity in Ambassador Car No. UPS 7293

8

belonging to rafiq accused while it was going

from Nehtaur to Dhampur on the pucca road

within the circle of P.S. Nahtaur District

Bijnaur and that in the commission of the said

dacoity, murder of jagdish prashad was

committed by you and that you thereby

committed an offence punishable under

Section 396 IPC and within the cognizance of

this court.

Secondly - that you along with one another

during the night of 30-09-77 and 1-10-77 in

the area of village Kashmiri P.S. Nehtaur Dist.

Bijnore knowing or having reason to believe

that an offence U/s 396 IPC punishable with

death or imprisonment for life has been

committed did cause evidence of the said

offence to disappear by secreting the dead

body of jagdish prashad in the sugar cane field

of Ikrar Ahmad with the intention of screening

yourself from legal punishment and thereby

committed an offence punishable u/s 201 IPC

and with the cognizance of this court.

And I hereby direct that you be tried by this

court on the said charge

25-2-80 Sd/- Judge

Charge read over and explained in Hindi to the

accused who pleaded not guilty.

Sd/- Judge

Sd/- Rafiq,

Sd/- Ahsan,

9

Sd/- Imamuddin,

Sd/- Arun Kumar

Sd/- Yashwant Singh"

The prosecution examined as many as 12 witnesses to

prove its case. Besides the statement of these witnesses,

prosecution had also placed reliance on Exhibits Ka-1 to Ka-

23. Incriminating evidence against the accused which came

on record during the course of the trial was put to the accused

whose statement under Section 313 of the Cr.P.C. was

recorded by the Court on 20th February, 1981. It may be

stated here that in his statement, accused Rafiq Ahmad denied

his presence at the place of occurrence and stated that the

witnesses being the relatives of the deceased were deposing

against the appellant. The accused had also led defence and

examined two witnesses, namely, Naik Singh (DW1) and Shri

J.P. Singh (DW2) and placed number of documents on record.

The Trial Court, by a detailed judgment dated 17th

August, 1981, came to the conclusion that Rafiq Ahmad was

guilty of charge under Sections 302 and 201 IPC under which

the accused was liable for conviction and punishment. The

10 Court further held that Ahsan was guilty of a charge under

Section 411 IPC but acquitted him and the three other

accused, namely, Imamuddin, Arun Kumar and Yashwant

Singh under Section 396 IPC by giving them benefit of doubt.

The Court awarded rigorous imprisonment for life to Rafiq

Ahmad under Section 302 IPC and seven years rigorous

imprisonment under Section 201 IPC. Both the sentences

were ordered to run concurrently. The Trial Court ordered

the accused Ahsan to undergo rigorous imprisonment for a

period of one year and to pay a fine of Rs.500/- under Section

411, IPC and in default to undergo imprisonment for further

period of six months.

Accused Rafiq Ahmad, dissatisfied with the judgment of

the Trial Court, preferred an appeal before the High Court.

Ahsan also challenged his conviction and sentence. Both

these appeals were heard and disposed of by the High Court

by a common judgment. The appeal filed by Rafiq Ahmad was

dismissed. His conviction and sentence was maintained while

the appeal preferred by Ahsan was accepted and he was

acquitted even of the charge under Section 411 IPC.

11 Rafiq Ahmad, in the present appeal, has impugned the

judgment of the High Court.

2. The entire emphasis of the submissions made on behalf

of the appellant is primarily founded on determination of a

question of law, which, if answered in favour of the appellant,

according to the learned counsel appearing for the appellant,

would entitle the appellant to an order of acquittal. The

argument is that the appellant was charged for an offence

under Section 396 IPC and without reformulation/alteration of

the charge, the appellant has been convicted for an offence

under Section 302 IPC. This according to the learned counsel,

has deprived the appellant of a fair opportunity of defence and

has caused him serious prejudice. Section 302 IPC is a graver

offence than an offence punishable under Section 396 of the

IPC and as such the entire trial and conviction of the appellant

is vitiated in law.

3. It is also contended that the learned trial court as well as

the High Court have erred in fact and in law, have failed to

appreciate the evidence in its correct perspective and also that

12

there are serious contradictions between the statements of the

witnesses. It is also urged that this being a case of

circumstantial evidence, the prosecution has failed to prove

the chain of events, pointing towards the guilt of the accused.

Therefore, the judgments of the courts below are liable to be

set aside.

4. On the contra, it is contended on behalf of the State that

despite the present case being a case of circumstantial

evidence, the prosecution has been able to establish its case

beyond any reasonable doubt. The appellant has suffered no

prejudice, whatsoever, because of his conviction under Section

302 of the IPC.

5. Before we proceed to examine the merit or otherwise of

the above rival contentions, it will be important for us to refer

to the relevant provisions of the IPC at this stage itself. The

relevant provisions read as under:-

"302.Punishment for murder.-Whoever

commits murder shall be punished with death,

or imprisonment for life, and shall also be

liable to fine.

13

396. Dacoity with murder.-If any one of five

or more persons, who are conjointly

committing dacoity, commits murder in so

committing dacoity, every one of those persons

shall be punished with death, or imprisonment

for life, or rigorous imprisonment for a term

which may extend to ten years, and shall also

be liable to fine."

6. As is evident from the amended charge reproduced

earlier, the appellant was charged with an offence under

Sections 396 and 201 of the IPC. It is not necessary for us to

examine the charge framed against the other co-accused as all

of them have been acquitted and the judgment of acquittal has

not been challenged before this Court.

7. Section 391 IPC explains the offence of `dacoity'. When

five or more persons conjointly commit or attempt to commit a

robbery, or where the whole number of persons conjointly

committing or attempting to commit a robbery, and persons

present and aiding such commission and attempt amount to

five or more, every person so committing, attempting or aiding,

is said to commit `dacoity'. Under Section 392 IPC, the offence

of `robbery' simplicitor is punishable with rigorous

imprisonment which may extend to ten years or 14 years

14

depending upon the facts of a given case. Section 396 IPC

brings within its ambit a murder committed along with

`dacoity'. In terms of this provision, if any one of the five or

more persons, who are conjointly committing dacoity, commits

murder in so committing dacoity, every one of those persons

shall be punished with death or imprisonment for life or

rigorous imprisonment for a term which may extend to ten

years and shall also be liable to fine.

8. On a plain reading of these provisions, it is clear that to

constitute an offence of `dacoity', robbery essentially should be

committed by five or more persons. Similarly, to constitute an

offence of `dacoity with murder' any one of the five or more

persons should commit a murder while committing the

dacoity, then every one of such persons so committing,

attempting to commit or aiding, by fiction of law, would be

deemed to have committed the offence of murder and be liable

for punishment provided under these provisions depending

upon the facts and circumstances of the case.

15 9. Section 299 defines `culpable homicide'. Whoever causes

death by doing an act with the intention of causing death, or

with the intention of causing such bodily injury as is likely to

cause death, or with the knowledge that he is likely by such

act to cause death, commits the offence of culpable homicide.

Except the exceptions provided under Section 300 IPC,

culpable homicide is murder if the act by which death is

caused is done with the intention of causing death. The

intention to cause death is the primary distinguishing feature

between these two offences. It is a fine but clear line of

distinction.

10. In terms of Section 300 IPC, except in the cases stated in

that provision, culpable homicide is murder if the act by which

the death is caused is done with the intention of causing death

or in terms of any of the circumstances stated secondly,

thirdly and fourthly respectively. The law clearly marks a

distinction between culpable homicide amounting to murder

and culpable homicide not amounting to murder. Another

distinction between Sections 302 and 396 is that under the

latter, wide discretion is vested in the courts in relation

16

awarding of punishment. The court, in exercise of its

jurisdiction and judicial discretion in consonance with the

established principles of law can award sentence of ten years

with fine or even award sentence of life imprisonment or

sentence of death, as the case may be while under Section

302, the court cannot, in its discretion, award sentence lesser

than life imprisonment.

11. The ingredients of both these offences, to some extent,

are also different inasmuch as to complete an offence of

`dacoity' under Section 396 IPC, five or more persons must

conjointly commit the robbery while under Section 302 of the

IPC even one person by himself can commit the offence of

murder. But, as already noticed, to attract the provisions of

Section 396, the offence of `dacoity' must be coupled with

murder. In other words, the ingredients of Section 302

become an integral part of the offences punishable under

Section 396 of the IPC. Resultantly, the distinction with

regard to the number of persons involved in the commission of

the crime loses its significance as it is possible that the

offence of `dacoity' may not be proved but still the offence of

17

murder could be established, like in the present case. Upon

reasonable analysis of the language of these provisions, it is

clear that the Court has to keep in mind the ingredients which

shall constitute a criminal offence within the meaning of the

penal section. This is not only essential in the case of the

offence charged with but even where there is comparative

study of different penal provisions as the accused may have

committed more than one offence or even offences of a graver

nature. He may finally be punished for a lesser offence or vice

versa, if the law so permits and the requisite ingredients are

satisfied.

12. So far the judicial pronouncements show a consistent

trend that wherever an accused is charged with a grave

offence, he can be punished for a less grave offence finally, if

the grave offence is not proved. For example, a person

charged with an offence under Section 302 of the IPC may

finally be convicted only for an offence under Section 304 Part

II where the prescribed punishment is lesser and the

consequences of conviction are less serious in comparison to a

conviction under Section 302. But even in those cases, the

18

Court has to be cautious while examining whether the

ingredients of the offences are independently satisfied. If the

ingredients even of a lesser offence are not satisfied then it

may be difficult in a given case for the court to convict the

person for an offence of a less grave nature. There can be

cases where it may not be possible at all to punish a person of

a less grave offence if its ingredients are completely different

and distinct from the grave offence. To deal with this aspect

illustratively, one could say that a person who is charged with

an offence under Section 326 may not be liable to be convicted

for an offence under Section 406 IPC because their ingredients

are entirely distinct, different and have to be established by

the prosecution on its own strength. In other words, the

accused has to be charged with a grave offence which would

take within its ambit and scope the ingredients of a less grave

offence. The evidence led by the prosecution for a grave

offence, thus, would cover an offence of a less grave nature.

But it is essential that the offence for which the Court

proposes to punish the accused, is established beyond

reasonable doubt by the prosecution.

19 13. A Constitution Bench of this Court in the case of Willie

(William) Slaney v. State of Madhya Pradesh [AIR 1956 SC

116] dealt with a question as to whether omission to frame a

charge was a curable irregularity. In that case the accused

was charged for committing an offence punishable under

Section 302 IPC but the Court finally convicted him of an

offence punishable under Section 304, Part II. The Court,

while examining if the accused had been prejudiced in his

defence and the validity of his conviction, held as under:

"6. Before we proceed to set out our

answer and examine the provisions of the

Code, we will pause to observe that the

Code is a code of procedure and, like all

procedural laws, is designed to further

the ends of justice and not to frustrate

them by the introduction of endless

technicalities. The object of the Code is to

ensure that an accused person gets a full

and fair trial along certain well-

established and well-understood line that

accord with our notions of natural

justice. If he does, if he is tried by a

competent court, if he is told and clearly

understands the nature of the offence for

which he is being tried, if the case

against him is fully and fairly explained

to him and he is afforded a full and fair

opportunity of defending himself, then,

provided there is substantial compliance

with the outward forms of the law, mere

20

mistakes in procedure, mere

inconsequential errors and omissions in

the trial are regarded as venal by the

Code and the trial is not vitiated unless

the accused can show substantial

prejudice. That, broadly speaking, is the

basic principle on which the Code is

based.

7. Now here, as in all procedural laws,

certain things are regarded as vital.

Disregard of a provision of that nature is

fatal to the trial and at once invalidates

the conviction. Others are not vital and

whatever the irregularity they can be

cured; and in that event the conviction

must stand unless the Court is satisfied

that there was prejudice. Some of these

matters are dealt with by the Code and

wherever that is the case full effect must

be given to its provisions. The question

here is, does the Code deal with the

absence of a charge and irregularities in

it, and if so, into which of the two

categories does it place them ? But before

looking into the Code, we deem it

desirable to refer to certain decisions of

the Privy Council because much of the

judicial thinking in this country has been

moulded by their observations. In our

opinion, the general effect of those

decisions can be summarised as follows.

XXX XXX XXX

17. It is possible (though we need not so

decide in this case) that the recent

amendment to section 537 in the Code of

Criminal Procedure (Amendment) Act

XXVI of 1955, where mis-joinder of

21

charges has been placed in the curable

category, will set at rest the controversy

that has raged around the true meaning

of N. A. Subramania Iyer v. King-Emperor.

In any case, our opinion is that the real

object of the Code is to leave these

matters to the discretion and vigilance of

the courts. Slightly to alter the language

of the Privy Council in Babulal

Choukhani v. The King-Emperor [1938]

L.R. 65 IndAp 158, we would say -

"It must be hoped, and indeed

assumed, that magistrates and

judges will exercise their jurisdiction

fairly and honestly. Such is the

implied condition of the exercise of

judicial power. It they do not, or if

they go wrong in fact or in law, the

accused has prima facie a right of

recourse to the superior courts by

way of appeal or revision; and the

cases show how vigilant and

resolute the High Courts are in

seeing that the accused is not

prejudiced or embarrassed by

unsubstantial departures from the

Code and how closely and jealously

the Supreme Court guards the

position of the accused. These

safeguards may well have appeared

to the Legislature to be sufficient

when they enacted the remedial

provisions of the Code and have now

left them substantially unaltered in

the new Code recently introduced".

This, we feel, is the true intent and

purpose of section 537(a) which covers

every proceeding taken with jurisdiction

22

in the general phrase "or other

proceedings under this Code". It is for the

Court in all these cases to determine

whether there has been prejudice to the

accused; and in doing so to bear in mind

that some violations are so obviously

opposed to natural justice and the true

intendment of the Code that on the face

of them and without anything else they

must be struck down, while in other

cases a close examination of all the

circumstances will be called for in order

to discover whether the accused has been

prejudiced.

XXX XXX XXX

In adjudging the question of prejudice the

fact that the absence of a charge, or a

substantial mistake in it, is a serious

lacuna will naturally operate to the

benefit of the accused and if there is any

reasonable and substantial doubt about

whether he was, or was reasonably likely

to have been, misled in the

circumstances of any particular case, he

is as much entitled to the benefit of it

here as elsewhere; but if, on a careful

consideration of all the facts, prejudice,

or a reasonable and substantial

likelihood of it, is not disclosed the

conviction must stand; also it will always

be material to consider whether objection

to the nature of the charge, or a total

want of one, was taken at an early stage.

If it was not, and particularly where

the accused is defended by `AIR 1930 PC

57 (2) at p.58 (G)', it may in a given case

be proper to conclude that the accused

23

was satisfied and knew just what he was

being tried for and knew what was being

alleged against him and wanted no

further particulars, provided it is always

borne in mind that "no serious defect in

the mode of conducting a criminal trial

can be justified or cured by the consent

of the advocate of the accused" `AIR 1927

PC 44 at pp.46-47 & 49 (F)'.

But these are matters of fact which

ill be special to each different case and no

conclusion on these questions of fact in

any one case can ever be regarded as a

precedent or a guide for a conclusion of

fact in another, because the facts can

never be alike in any two cases however

alike they may seem. There is no such

thing as a judicial precedent on facts

though counsel, and even judges, are

sometimes prone to argue and to act if

there were."

14. The Court, while laying down the above law, significantly

noticed that the Code is a code of procedure and like all

procedural laws is designed to further the ends of justice and

not to frustrate them by the introduction of endless

technicalities. The object of the code is to ensure that an

accused person gets a full and fair trial along with certain

well-established and well-understood canons of law that

accord with the notions of natural justice.

24 15. In the case of Iman Ali & Anr. v. State of Assam, [AIR

1968 SC 1464], the Court had the occasion to explain the

distinction between the scope, liability and punishment for an

offence under Section 396, as opposed to Section 302 IPC.

The Court noticed that the offence under Section 396 was no

less heinous than an offence under Section 302 though in the

latter case, it was obligatory on the part of the Court to record

reasons for not awarding death sentence. The Court while

sustaining the enhancement of punishment from sentence of

life imprisonment to sentence of death by the High Court on

the ground that there was a direct evidence to show that the

accused had committed the alleged murder, held as under:

"Learned counsel for the appellants, in

challenging the justification for the order

of enhancement of sentence by the High

Court, relied on the principle laid down

by this court in Dalip Singh v. State of

Punjab, 1954 SCR 145 at p.156 = (AIR

1953 SC 364 at pp. 367-368) which was

explained in the following words:-

"In a case of murder, the death

sentence should ordinarily be

imposed unless the trying Judge for

reasons which should normally be

recorded considers it proper to

award the lesser penalty. But the

25

discretion is his and if he gives

reasons on which a judicial mind

could properly be found, an

appellate court should not interfere.

The power to enhance a sentence

from transportation to death should

very rarely be exercised and only for

the strongest possible reasons. It is

not enough for an appellate court to

say, or think, that if left to itself it

would have awarded the greater

penalty because the discretion does

not belong to the appellate court but

to the trial Judge and the only

ground on which an appellate court

can interfere is that the discretion

has been improperly exercised, as

for example, where no reasons are

given and none can be inferred from

the circumstances of the case, or

where the facts are so gross that no

normal judicial mind would have

awarded the lesser penalty."

It appears to us, however, that, in the

present case, this principle is of no

assistance to the appellants for

challenging the step taken by the High

Court. This court cautioned the appellate

court against interfering if the discretion

of the trying Judge is exercised for

reasons recorded by him and if it appears

from the reasons that he had exercised a

judicial mind in not awarding the

sentence of death. In the present case, as

mentioned by the High Court and as is

apparent from the judgment of the Court

of Session, the trial court awarded the

sentence of imprisonment for life without

26

giving any reasons at all for adopting that

course. It is true that the appellants were

not convicted in the present case for the

offence of murder simpliciter under

Section 302 IPC; but that, in our opinion,

is immaterial. The conviction of the

appellants under section 396 IPC, was

not based on constructive liability as

members of the gang of dacoits. There

was clear finding by the court of Session

which has been upheld by the High Court

that each of these appellants committed a

cold-blooded murder by shooting two

inmates of the house simply with the

object of facilitating commission of

dacoity by them. Those persons were shot

and killed even though they had not even

tried to put up any resistance. The

offence under Section 396 IPC, was

therefore, no less heinous than an offence

under Section 302 IPC. In these

circumstances, when the court of Session

gave no reason at all for not awarding the

sentence of death and for sentencing

them to imprisonment for life only, it

cannot be held that the High Court was

not justified in interfering with that order.

Learned counsel in this connection

refereed us to a decision of a Division

Bench of the Allahabad High Court in Lal

Singh v. Emperor A.I.R. 1938 Alld. 625,

where it was held :

"We do not consider that as a

general rule a sentence of death

should necessarily follow a

conviction under s. 396, I.P.C., and

this Section differs from s. 302,

I.P.C., in that respect. The rule is

27

under s. 302, that a sentence of

death should follow unless reasons

are shown for giving a lesser

sentence. No such rule applies to s.

396, I.P.C."

Again, we do not think that the

learned Judges of the Allahabad High

Court intended to lay down that, even in

cases where a person is convicted for the

offence under s. 396, I.P.C., and there is

clear evidence that he himself had

committed a cold-blooded murder in

committing the dacoity, a sentence of

death should not follow. Clearly, the view

expressed was meant to apply to those

cases where there could be no definite

finding as to which person committed the

murder and all the members of the gang

are held constructively guilty of the

offence punishable under s. 396, I.P.C. A

principle enunciated for such a situation

cannot be applied to a case where there is

direct evidence that a particular accused

committed the murder himself, as is the

finding in the present case."

17. With the passage of time more and more such cases

came up for consideration of this Court as well as the High

Courts. The development of law has not changed the basic

principles which have been stated in the judgments afore-

referred. Usually an offence of grave nature includes in itself

the essentials of a lesser but cognate offence. In other words,

there are classes of offences like offences against the human

28

body, offences against property and offences relating to

cheating, misappropriation, forgery etc. In the normal course

of events, the question of grave and less grave offences would

arise in relation to the offences falling in the same class and

normally may not be inter se the classes. It is expected of the

prosecution to collect all evidence in accordance with law to

ensure that the prosecution is able to establish the charge

with which the accused is charged, beyond reasonable doubt.

It is only in those cases, keeping in view the facts and

circumstances of a given case and if the court is of the view

that the grave offence has not been established on merits or

for a default of technical nature, it may still proceed to punish

the accused for an offence of a less grave nature and content.

18. In the case of Anil @ Raju Namdev Patil vs.

Administration of Daman & Diu and Anr. [2006 Suppl. (9) SCR

466], the Court had to deal with a situation where the

accused, a car driver had kidnapped a child of five years for

the purpose of demanding ransom and later killed the child.

The accused had been charged for an offence punishable

under Sections 364, 302 and 201 IPC, but was finally

29

convicted for an offence punishable under Section 364-A and

was awarded sentence of death. This Court held that there

was prejudice caused to the appellant and the sentence was

modified from death to rigorous imprisonment for life with

conviction under Section 364 IPC. The Court, besides

recording the above findings on the merits of the case noticed

the precedents in relation to non-framing of charge. The

Bench referred to various judgments of this Court in K. Prema

S. Rao and Anr. v. Yadla Srinivasa Rao and Ors. [(2003) 1 SCC

217], Kammari Brahmaiah and Ors. v. Public Prosecutor, High

Court of A.P. [(1999) 2 SCC 522], Dalbir Singh v. State of U.P.

[(2004 5 SCC 334], Kamalanantha and Ors. v. State of T.N.

[(2005 5 SCC 194], Harjit Singh v. State of Punjab [(2006 1

SCC 463] and recapitulated the principles of law stated in

these judgments and stated the following precepts of law

which would govern such cases:

"The propositions of law which can be

culled out from the aforementioned

judgments are:

(i) The appellant should not

suffer any prejudice by reason

of misjoinder of charges.

30

(ii) A conviction for lesser offence

is permissible.

(iii) It should not result in failure of

justice.

(iv) If there is a substantial

compliance, misjoinder of

charges may not be fatal and

such misjoinder must be

arising out of mere misjoinder

to frame charges.

The ingredients for commission of offence

of Section 364 and 364-A are different.

Whereas the intention to kidnap in order

that he may be murdered or may be so

disposed of as to be put in danger as

murder satisfied the requirements of

Section 364 of the Indian Penal Code, for

obtaining a conviction for commission of

an offence under Section 364-A thereof it

is necessary to prove that not only such

kidnapping or abetment has taken place

but thereafter the accused threatened to

cause death or hurt to such person or by

his conduct gives rise to a reasonable

apprehension that such person may be

put to death or hurt or causes hurt or

death to such person in order to compel

the government or any other person to do

or abstain from doing any act or to pay a

ransom.

It was, thus, obligatory on the part

of the learned Sessions Judge, Daman, to

frame a charge which would answer the

description of the offence envisaged

under Section 364-A of the Indian Penal

Code. It may be true that the kidnapping

31

was done with a view to get ransom but

the same should have been put to the

appellant while framing a charge. The

prejudice to the appellant is apparent as

the ingredients of a higher offence had

not been put to him while framing any

charge.

It is not a case unlike Kammari

Brahmaiah (supra) where the offence was

of a lesser gravity, as has been observed

by Shah, J."

19. In light of the above principles, let us now examine the

meaning of `prejudice'. The expression has been defined in

Black's Law Dictionary (Eighth Edition), as follows:

"prejudice, 1. Damage or detriment to

one's legal rights or claims. See

dismissal with prejudice, dismissal

without prejudice under DISMISSAL.

Legal prejudice. A condition that, if

shown by a party, will usu. defeat the

opposing party's action: esp. a condition

that, if shown by the defendant, will

defeat a plaintiff's motion to dismiss a

case without prejudice. The defendant

may show that dismissal will deprive the

defendant of a substantive property right

or preclude the defendant from raising a

defense that will be unavailable or

endangered in a second suit.

Undue prejudice. The harm resulting

from a fact-trier's being exposed to

32

evidence that is persuasive but

inadmissible (such as evidence of prior

criminal conduct) or that so arouses the

emotions that calm and logical reasoning

is abandoned.

2. A preconceived judgment formed

without a factual basis; a strong bias"

20. When we speak of prejudice to an accused, it has to

be shown that the accused has suffered some disability or

detriment in the protections available to him under the Indian

criminal jurisprudence. It is also a settled canon of criminal

law that this has occasioned the accused with failure of

justice. One of the other cardinal principles of criminal justice

administration is that the courts should make a close

examination to ascertain whether there was really a failure of

justice or whether it is only a camouflage, as this expression is

perhaps too pliable. With the development of law, Indian

courts have accepted the following protections to and rights of

the accused during investigation and trial :

(a) The accused has the freedom to maintain silence

during investigation as well as before the Court. The

accused may choose to maintain silence or make

33

complete denial even when his statement under Section

313 of the Code of Criminal Procedure is being

recorded, of course, the Court would be entitled to draw

inference, including adverse inference, as may be

permissible to it in accordance with law;

(b) Right to fair trial

(c) Presumption of innocence (not guilty)

(d) Prosecution must prove its case beyond reasonable

doubt.

21. Prejudice to an accused or failure of justice, thus, has to

be examined with reference to these aspects. That alone,

probably, is the method to determine with some element of

certainty and discernment whether there has been actual

failure of justice. `Prejudice' is incapable of being interpreted

in its generic sense and applied to criminal jurisprudence.

The plea of prejudice has to be in relation to investigation or

trial and not matters falling beyond their scope. Once the

accused is able to show that there is serious prejudice to

either of these aspects and that the same has defeated the

34

rights available to him under the criminal jurisprudence, then

the accused can seek benefit under the orders of the Court.

22. Right to fair trial, presumption of innocence until

pronouncement of guilt and the standards of proof, i.e., the

prosecution must prove its case beyond reasonable doubt are

the basic and crucial tenets of our criminal jurisprudence.

The Courts are required to examine both the contents of the

allegation of prejudice as well as its extent in relation to these

aspects of the case of the accused. It will neither be possible

nor appropriate to state such principle with exactitude as it

will always depend on the facts and circumstances of a given

case. Therefore, the Court has to ensure that the ends of

justice are met as that alone is the goal of criminal

adjudication. Thus, wherever a plea of prejudice is raised by

the accused, it must be examined with reference to the above

rights and safeguards, as it is the violation of these rights

alone that may result in weakening of the case of the

prosecution and benefit to the accused in accordance with

law.

35 During conduct of trial, framing of a charge is an

important function of the court. Sections 211 to 224 of

Chapter XVII of the Code of Criminal Procedure, 1973 have

been devoted by the Legislature to the various facets of

framing of charge and other related matters thereto. Under

Section 211, the charge should state the offence with which

the accused is charged and should contain the other

particulars specified in that section. In terms of Section 214,

in every charge words used in describing an offence shall be

deemed to have been used in the sense attached to them

respectively by the law under which such offence is

punishable. Another significant provision is Section 215

which states that 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. Further, the court has

been vested with the power to alter the charge. There could be

trial of more than one offence together and there could even be

36

joint trial of the accused. We have referred to these provisions

primarily to indicate that the purpose of framing of a charge is

to put the accused at notice regarding the offence for which he

is being tried before the court of competent jurisdiction. For

want of requisite information of offence and details thereof, the

accused should not suffer prejudice or there should not be

failure of justice, as held by this Court in the case of

Shamnsaheb M. Multtani v. State of Karnataka [(2001) 2 SCC

577]. The requirements of putting the accused at notice and

there being a charge containing the requisite particulars, as

contemplated under Section 211, has to be read with reference

to Section 215 of the Code. Every omission would not vitiate

the trial. This Court has settled this position in the case of

Willie (William) Slaney v. State of Madhya Pradesh [AIR 1956

SC 116] wherein the Court held as under :

"36. Sections 222 to 224 deal with the

form of a charge and explain what a

charge should contain. Section 225 deals

with the effect of errors relating to a

charge. Sections 233 to 240 deal with the

joinder of charges. Sections 535 and 537

are in the Chapter that deals with

irregularities generally and these two

sections deal specifically with the charge

37

and make it clear that an omission to

frame a charge as well as irregularities,

errors and omission in a charge are all

irregularities that do not vitiate or

invalidate a conviction unless there is

prejudice.

37. But, apart from that, if we examine

the learned counsel's contention more

closely, the fallacy in his argument

becomes clear. Sections 237 and 238 deal

with cases in which there is a charge to

start with and then they go on to say that

in certain cases the trial can proceed

beyond the matter actually charged and a

conviction for an offence disclosed in the

evidence in that type of case will be good

despite the absence of a charge in respect

of it. But what are those cases? Only

those in which the additional charge or

charges could have been framed from the

start; and that is controlled by Sections

234, 235 and 239 which set out the rules

about joinder of charges and persons."

Dinesh Seth v. State of NCT of Delhi [(2008) 14 SCC 94]

was a case where the accused was charged with an offence

under Section 304B read with Section 34 IPC but was finally

convicted for an offence under Section 498A. The plea of

prejudice, on the ground that no specific charge under Section

498A was framed and the Court, while referring to the facts

and circumstances of the case and the cross-examination of

38

the prosecution witnesses found that it was unmistakably

shown that the defence had made concerted efforts to discredit

the testimony of the alleging cruelty, was rejected and the

accused was punished for an offence under Section 498A.

This clearly demonstrates the principle that in all cases, non-

framing of charge or some defect in drafting of the charge per

se would not vitiate the trial itself. It will have to be examined

in the facts and circumstances of a given case. Of course, the

court has to keep in mind that the accused `must be' and not

merely `may be' guilty of an offence. The mental distance

between `may be' and `must be' is long and divides vague

conjectures from sure conclusions. {Shivaji Sahebrao Bobade

& Anr. v. State of Maharashtra [AIR 1973 SC 2622]}.

23. Having stated the above, let us now examine what kind of

offences may fall in the same category except to the extent of

`grave or less grave'. We have already noticed that a person

charged with a heinous or grave offence can be punished for a

less grave offence of cognate nature whose essentials are

satisfied with the evidence on record. Examples of this kind

have already been noticed by us like a charge being framed

39

under Section 302 IPC and the accused being punished under

Section 304, Part I or II, as the circumstances and facts of the

case may demand. Furthermore, a person who is charged

with an offence under Section 326 IPC can be finally convicted

for an offence of lesser gravity under Section 325 or 323 IPC, if

the facts of the case so establish. Alike or similar offences can

be termed as `cognate offences'. The word `cognate' is a term

primarily used in civil jurisprudence particularly with

reference to the provisions of the Hindu Succession Act, 1956

where Section 3(c) has used this expression in relation to the

descendants of a class of heirs and normally the term is used

with reference to blood relations. Section 3(c) of the Hindu

Succession Act defines "cognate" as follows:

"one person is said to be a cognate of

another if the two are related by blood or

adoption but not wholly through males."

24. The Encyclopedia Law Lexicon, explain the word `cognate'

in relation to civil law as follows:

"Cognate. - According to Hindu Law it is

a class of heirs, descended or borrowed

from the same earlier form.

40

- It means blood relation including

female relation.

Word "cognate" literally means "akin in

nature", Ram Briksh v. State, 1978 All

Cri C 253"

25. This expression has also been recognized and applied to

the criminal jurisprudence as well not only in the Indian

system but even in other parts of the world. Such offences

indicate the similarity, common essential features between the

offences and they primarily being based on differences of

degree have been understood to be `cognate offences'. Black's

Law Dictionary (Eighth Edition) defines the expression

`cognate offences' as follows:

"cognate offences. A lesser offence that

is related to the greater offense because it

shares several of the elements of the

greater offense and is of the same class or

category. For example, shoplifting is a

cognate offence of larceny because both

crimes require the element of taking

property with the intent to deprive the

rightful owner of that property."

26. Therefore, where the offences are cognate offences with

commonality in their feature, duly supported by evidence on

41

record, the Courts can always exercise its power to punish the

accused for one or the other provided the accused does not

suffer any prejudice as afore-indicated.

27. We may now refer to certain cases where this Court had

the occasion to deal with such issues. Certain divergent views

were also expressed in relation to conversion of an offence

from a grave to a less grave offence. In the case of Lakhjit

Singh v. State of Punjab [1994 Suppl.(1) SCC (Crl.) 173], the

accused was charged with an offence under Section 302 IPC

and convicted and sentenced for the said offence, both by the

Trial Court as well as the High Court. In appeal, a Division

Bench of this Court considered whether the offence could be

converted and the appellant could be convicted for an offence

under Section 306 IPC. Having regard to the evidence

adduced by the prosecution and the answer of the accused to

the questions put to him under Section 313 of the Cr.P.C., the

Court was satisfied that the accused had fair notice of the

allegations to attract an offence under Section 306 IPC and as

such there was no denial of fair trial to the accused. Finally,

the Court convicted him of an offence under Section 306 IPC.

42 However, a different view was expressed in a subsequent

judgment by another Division Bench of this Court in the case

of Sanagaraboina Sreenu v. State of A.P. [(1997) 5 SCC 348 :

AIR 1957 SC 623]. In that case also the Court was dealing

with the situation where the accused was charged under

Section 302 but had been convicted under Section 306 IPC.

This Court felt that having acquitted the accused for an

offence under Section 302 which was the only charge against

the accused, he could not have been convicted for an offence

punishable under Section 306 IPC as both these offences were

distinct and different. Resultantly, the accused was acquitted.

The controversy arising from these two judgments of this

Court came up for consideration before a three-Judge Bench

of this court in the case of Dalbir Singh v. State of U.P. [(2004)

5 SCC 334], wherein the accused was charged with an offence

under Sections 302, 498A and 304-B IPC, but finally was

convicted under Section 302 by the Trial Court and sentenced

to death. On appeal, the High Court acquitted him of the

charge under Section 302 IPC opining that the evidence on

record clearly established the charge under Section 306 IPC. 43

Keeping in view the decision in the case of Sanagaraboina

Sreenu (supra), the High Court had concluded that the

accused could not be convicted under Section 306 and on this

basis convicted him under Section 498A alone. The argument

raised before this Court was that the basic ingredients were

distinct and different. The accused was not aware of the basic

ingredients, the facts sought to be established against him

were not explained to him and he did not get a fair chance to

defend himself. Resultantly, he ought not to have been

convicted for an offence under Section 498A IPC. Rejecting all

these contentions, this Court, while convicting the accused for

an offence under Section 306, held that the law stated in

Sanagaraboina Sreenu (supra) was not correct enunciation of

law and held as under :

"This question was again examined by a

three Judge Bench in Gurbachan Singh v.

State of Punjab AIR 1957 SC 623 in

which it was held as under:

"[I]n judging a question of prejudice,

as of guilt, Courts must act with a

broad vision and look to the

substance and not to technicalities,

and their main concern should be to

see whether the accused had a fair

44

trial, whether he knew what he was

being tried for, whether the main

facts sought to be established

against him were explained to him

fairly and clearly and whether he

was given a full and fair chance to

defend himself."

17. There are a catena of decisions of this

Court on the same lines and it is not

necessary to burden this judgment by

making reference to each one of them.

Therefore, in view of Section 464 Cr.P.C.,

it is possible for the appellate or

revisional Court to convict an accused for

an offence for which no charge was

framed unless the Court is of the opinion

that a failure of justice would in fact

occasion. In order to judge whether a

failure of justice has been occasioned, it

will be relevant to examine whether the

accused was aware of the basic

ingredients of the offence for which he is

being convicted and whether the main

facts sought to be established against

him were explained to him clearly and

whether he got a fair chance to defend

himself. We are, therefore, of the opinion

that Sangarabonia Sreenu (AIR 1957 SC

623) was not correctly decided as it

purports to lay down as a principle of law

that where the accused is charged under

Section 302 IPC, he cannot be convicted

for the offence under Section 306 IPC.

XXX XXX XXX

The next question to be seen is whether

the accused was confronted with the

aforesaid features of the prosecution case

45

in his statement under Section 313 CrPC.

His statement runs into six pages where

every aspect of the prosecution case

referred to above was put to him. He also

gave a long written statement in

accordance with Section 233(2) CrPC

wherein he admitted that Vimla

committed suicide. He also admitted that

the scooter and colour TV were

subsequently given to him by his in-laws

but came out with a plea that he had

paid money and purchased the same

from his in-laws. There is no aspect of the

prosecution which may not have been put

to him. We are, therefore, of the opinion

that in view of the material on record, the

conviction under Section 306 IPC can

safely be recorded and the same would

not result in failure of justice in any

manner. The record shows that the

accused was taken into custody on 29-3-

1991 and was released from jail after the

decision of the High Court on 20-3-1997

and thus he has undergone nearly six

years of imprisonment. In our opinion,

the period already undergone (as

undertrial and after conviction) would

meet the ends of justice."

28. We may also make a reference to another three-Judge

Bench judgment of this Court in the case of Shamnsaheb M.

Multtani vs. State of Karnataka [(2001) 2 SCC 577] which was

not noticed in the case of Dalbir Singh (supra). In that case,

the accused initially had been charged with an offence under

46 Section 302 IPC but was convicted for an offence under

Section 304B IPC as according to the High Court there was no

failure of justice. This Court found error in the judgment of

the High Court convicting the accused of an offence under

Section 304B as the accused was not put at notice of the

adverse presumption that the Court is statutorily bound to

draw on satisfaction of two ingredients of Section 304-B.

Therefore, this Court remanded the matter. It also noticed the

conflict of views expressed in the cases of Lakhjit Singh

(supra) and Sanagaraboina Sreenu (supra) and mentioned

that in `cognate offences', the main ingredients are common

and the one amongst them that is punishable with a lesser

sentence can be regarded as a minor offence. The Court,

finding that the ingredients of Sections 302 and 304B are

different, held as follows:

"15. Section 222(1) of the Code deals with

a case "when a person is charged with an

offence consisting of several particulars".

The section permits the court to convict

the accused "of the minor offence, though

he was not charged with it". Sub-section

(2) deals with a similar, but slightly

different situation.

47 "222. (2) When a person is

charged with an offence and facts

are proved which reduce it to a

minor offence, he may be convicted

of the minor offence, although he is

not charged with it."

16. What is meant by "a minor offence"

for the purpose of Section 222 of the

Code? Although the said expression is

not defined in the Code it can be

discerned from the context that the test

of minor offence is not merely that the

prescribed punishment is less than the

major offence. The two illustrations

provided in the section would bring the

above point home well. Only if the two

offences are cognate offences, wherein the

main ingredients are common, the one

punishable among them with a lesser

sentence can be regarded as minor

offence vis-`-vis the other offence.

17. The composition of the offence under

Section 304-B IPC is vastly different from

the formation of the offence of murder

under Section 302 IPC and hence the

former cannot be regarded as minor

offence vis-`-vis the latter. However, the

position would be different when the

charge also contains the offence under

Section 498-A IPC (husband or relative of

husband of a women subjecting her to

cruelty). As the word "cruelty" is

explained as including, inter alia,

"harassment of the woman where

such harassment is with a view to

coercing her or any person related

48

to her to meet any unlawful demand

for any property or valuable security

or is on account of failure by her or

any person related to her to meet

such demand".

18. So when a person is charged with an

offence under Sections 302 and 498-A

IPC on the allegation that he caused the

death of a bride after subjecting her to

harassment with a demand for dowry,

within a period of 7 years of marriage, a

situation may arise, as in this case, that

the offence of murder is not established

as against the accused. Nonetheless, all

other ingredients necessary for the

offence under Section 304-B IPC would

stand established. Can the accused be

convicted in such a case for the offence

under Section 304-B IPC without the said

offence forming part of the charge?

XXX XXX XXX

30. But the peculiar situation in

respect of an offence under Section 304-B

IPC, as discernible from the distinction

pointed out above in respect of the

offence under Section 306 IPC is this:

Under the former the court has a

statutory compulsion, merely on the

establishment of two factual positions

enumerated above, to presume that the

accused has committed dowry death. If

any accused wants to escape from the

said catch the burden is on him to

disprove it. If he fails to rebut the

presumption the court is bound to act on

it.

49

31. Now take the case of an accused who

was called upon to defend only a charge

under Section 302 IPC. The burden of

proof never shifts onto him. It ever

remains on the prosecution which has to

prove the charge beyond all reasonable

doubt. The said traditional legal concept

remains unchanged even now. In such a

case the accused can wait till the

prosecution evidence is over and then to

show that the prosecution has failed to

make out the said offence against him.

No compulsory presumption would go to

the assistance of the prosecution in such

a situation. If that be so, when an

accused has no notice of the offence

under Section 304-B IPC, as he was

defending a charge under Section 302

IPC alone, would it not lead to a grave

miscarriage of justice when he is

alternatively convicted under Section

304-B IPC and sentenced to the serious

punishment prescribed thereunder,

which mandates a minimum sentence of

imprisonment for seven years.

32. The serious consequence which may

ensue to the accused in such a situation

can be limned through an illustration: If

a bride was murdered within seven years

of her marriage and there was evidence to

show that either on the previous day or a

couple of days earlier she was subjected

to harassment by her husband with

demand for dowry, such husband would

be guilty of the offence on the language of

Section 304-B IPC read with Section 113-

B of the Evidence Act. But if the murder

of his wife was actually committed either

50

by a dacoit or by a militant in a terrorist

act the husband can lead evidence to

show that he had no hand in her death at

all. If he succeeds in discharging the

burden of proof he is not liable to be

convicted under Section 304-B IPC. But if

the husband is charged only under

Section 302 IPC he has no burden to

prove that his wife was murdered like

that as he can have his traditional

defence that the prosecution has failed to

prove the charge of murder against him

and claim an order of acquittal.

XXX XXX XXX

35. As the appellant was convicted by the

High Court under Section 304-B IPC,

without such an opportunity being

granted to him, we deem it necessary in

the interest of justice to afford him that

opportunity. The case in the trial court

should proceed against the appellant (not

against the other two accused whose

acquittal remains unchallenged now)

from the stage of defence evidence. He is

put to notice that unless he disproves the

presumption, he is liable to be convicted

under Section 304-B IPC."

29. This concept of punishing the accused for a less grave

offence than the one for which he was charged is not unique to

the Indian Judicial System. It has its relevancy even under

the English jurisprudence under the concept of alternative

51

verdicts. In R v. Coutts (Appellant), [2006 UKHL 39], the

appellant was convicted by the jury of the murder of the

deceased on an indictment charging him with that crime

alone. The deceased had died by accident when the appellant

and she had been engaged in consensual sexual asphyxial

activity. The House of Lords considered whether the issue of

manslaughter should have been left to the jury as an

alternative verdict which they could return under Section 6(2)

of the Criminal Law Act, 1967. The Court of Appeal rejected

the appellant's contention that this issue should have been left

to the jury by the trial judge on the ground that for the judge

to introduce the possibility of a verdict of manslaughter on

these grounds would have transformed the nature of the case

that the appellant was required to meet. The appellant argued

in appeal that if the trial judge fails to leave to the jury an

intermediate verdict in the alternative which is raised by

credible evidence, that is an irregularity which will render the

verdict unsafe. The Crown took the stand that this was a

deliberate and sadistic killing. In resolving this issue, the

House of Lords was simultaneously faced with the broader

52

question concerning the duty and discretion of trial judges to

leave alternative verdicts of lesser-included offences to the jury

where there is evidence which a rational jury could accept to

support such a verdict but neither prosecution nor defence

seek it. Lord Bingham of Cornhill spoke thus on behalf of his

four learned colleagues:

"The public interest in the

administration of justice is, in my

opinion, best served if in any trial on

indictment the trial judge leaves to the

jury, subject to any appropriate

caution or warning, but irrespective of

the wishes of trial counsel, any

obvious alternative offence which

there is evidence to support. I would

not extend the rule to summary

proceedings since, for all their potential

importance to individuals, they do not

engage the public interest to the same

degree. I would also confine the rule to

alternative verdicts obviously raised by

the evidence: by that I refer to

alternatives which should suggest

themselves to the mind of any ordinarily

knowledgeable and alert criminal judge,

excluding alternatives which ingenious

counsel may identify through diligent

research after the trial. Application of this

rule may in some cases benefit the

defendant, protecting him against an

excessive conviction. In other cases it

may benefit the public, by providing for

53

the conviction of a lawbreaker who

deserves punishment. A defendant may,

quite reasonably from his point of view,

choose to roll the dice. But the interests

of society should not depend on such a

contingency.

(emphasis supplied)"

30. Therefore, the Lords were of the unanimous opinion that

the judge should have left a manslaughter verdict to the jury

and his failure to do so was a material irregularity. The Court

of Appeal, following the advice of the House of Lords, quashed

the appellants conviction and ordered a retrial.

31. As is evident from the above stated principles of law in

various judgments, there is no absolute bar or impediment, in

law, in punishing a person for an offence less grave than the

offences for which the accused was charged during the course

of the trial provided the essential ingredients for adopting such

a course are satisfied.

32. In the present case, we are primarily concerned with an

offence punishable under Section 396 IPC and in alternative

for an offence under Section 302 of the IPC. The offence under

Section 396 consists of two parts: firstly, dacoity by five or

54

more persons, and secondly, committing of a murder in

addition to the offence of dacoity. If the accused have

committed both these offences, they are liable to be punished

with death or imprisonment for life or rigorous imprisonment

for a term which may extend to ten years and be liable to pay

fine as well. Under Section 302 IPC, whoever commits murder

shall be punished with death or imprisonment for life and

shall also be liable to pay fine. The offence of murder has

been explained under Section 300 IPC. If the act by which the

death is caused is done with the intention of causing death, it

is murder. It will also be a murder, if it falls in any of the

circumstances secondly, thirdly and fourthly of Section 300

and it is not so when it falls in the exception to that Section.

33. On the conjoint reading of Sections 396 and 302 IPC, it is

clear that the offence of murder has been lifted and

incorporated in the provisions of Section 396 IPC. In other

words, the offence of murder punishable under Section 302

and as defined under Section 300 will have to be read into the

provisions of offences stated under Section 396 IPC. In other

words, where a provision is physically lifted and made part of

55

another provision, it shall fall within the ambit and scope of

principle akin to `legislation by incorporation' which normally

is applied between an existing statute and a newly enacted

law. The expression `murder' appearing in Section 396 would

have to take necessarily in its ambit and scope the ingredients

of Section 300 of the IPC. In our opinion, there is no scope for

any ambiguity. The provisions are clear and admit no scope

for application of any other principle of interpretation except

the `golden rule of construction', i.e., to read the statutory

language grammatically and terminologically in the ordinary

and primary sense which it appears in its context without

omission or addition. These provisions read collectively, put

the matter beyond ambiguity that the offence of murder, is by

specific language, included in the offences under Section 396.

It will have the same connotation, meaning and ingredients as

are contemplated under the provisions of Section 302 IPC.

34. In light of the principles afore-stated, now we may revert

to the facts and circumstances of the case in hand. It is

admittedly a case of circumstantial evidence and, thus, the

evidence has to be examined in that context. There is no

56

dispute to the fact that the charge under Sections 396 and

201 IPC had been framed against the accused. The Trial

Court had acquitted the four accused but convicted the

present appellant for an offence under Sections 302 and 201

while convicting another accused, namely Ahsan, for an

offence punishable under Section 411 IPC. The judgment of

the trial court was upheld by the High Court in so far as the

acquittal of the four accused for the offences under Section

396 was concerned as well as the conviction of the present

appellant under Section 396 IPC. However, the High Court

acquitted Ahsan for the offence under Section 201 IPC which

does not concern us in the present appeal. The charge being

under Section 396 alone whether the accused could have been

convicted for an offence under Section 302 IPC without

alteration of charge is the short question involved in the case

before us. Let us examine the evidence for conviction of the

appellant on the basis of the circumstantial evidence. The

High Court in paragraph 35 of its judgment has stated the

following circumstances which undoubtedly point towards the

guilt of the accused: -

57 "1. That the deceased (Jagdish Chandra)

left his house/shop for Nehtaur on

30.09.77 to realize the amount from

customers.

2. That he was seen in Nehtaur Kasba by

PW-2 Ved Prakash and PW-4 Gyan

Chand on that day who saw him

occupying taxi no. UPS 7293.

3. That the deceased was sitting in the

taxi along with others and appellant Rafiq

Ahmad was found on the driver seat;

4. That the taxi in question proceeded for

Dhampur from Agency Chauraha,

Nehtaur in the presence of PW-4 Gyan

Chand;

5. That the appellant (Rafiq Ahmad) was

arrested by the police on 2.10.77

alongwith his taxi and he made a

confession to the IO in the presence of

two public witnesses that he had

concealed the dead body in a sugarcane

field near village kashmiri;

6. That subsequent recovery of the dad

(sic) body of deceased (Jagdish Chandra)

from the sugarcane field at the pointing

out of the appellant in the night indicates

that Rafiq Ahmad alongwith some others

looted the cash and other valuables from

the person of the deceased.

7. That Jagdish Chandra was done to

death by the appellant (Rafiq Ahmad) in

the night intervening 30.9.77/1.10.77

58

and the appellant with a view to screen

himself from legal punishment caused

disappearance of the dead body by

throwing the same in the sugarcane

field."

35. The above circumstances have to be examined along with

the statements of Ved Prakash (PW2) and Gyan Chand (PW4),

the witnesses who had last seen the deceased with the

appellant. The statements of the Investigating Officer (PW11)

and the witnesses including Pyare Lal (PW3), in whose

presence the dead body was recovered at the behest of the

appellant, by means of recovery memo Ex.PW Ex-Ka 3 are the

other material pieces of evidence which would complete the

chain of events and point undoubtedly towards the guilt of the

accused. The accused, for the reasons best known to him,

had taken up a stand of complete denial in his statement

dated 20th February, 1981 recorded under Section 313 Cr.P.C.

and opted not to explain his whereabouts at the relevant time.

Furthermore, he was a regular taxi driver at the stand of

Agency Chauraha. It is true that the statement under Section

313 Cr.P.C. cannot be the sole basis for conviction of the

accused but certainly it can be a relevant consideration for the

59

courts to examine, particularly when the prosecution has

otherwise been able to establish the chain of events. It is

clearly established from the evidence on record that the

deceased was a regular trader and used to come to Nehtaur

from where he was picked up by the appellant on the fateful

day. These were certain definite circumstances clearly

indicating towards the involvement of the appellant in the

commission of the crime. The prosecution has been able to

establish its case beyond reasonable doubt on the basis of the

circumstantial evidence. There is no significant link which is

missing in the case put forward by the prosecution.

36. At this stage, we may refer to a Constitution Bench

judgment of this Court in the case of Shyam Behari v. State

of Uttar Pradesh [AIR 1957 S.C. 320] wherein the accused after

being charged for an offence under Section 396 IPC was finally

convicted under Section 302 IPC. The Court in the said

judgment held as under:

"15. It is, however, unnecessary to do so

because in the facts and circumstances of

the present case the appellant is liable to

be convicted of the offence under Section

60 302 Indian Penal Code without anything

more. The charge under Section 396,

Indian Penal Code comprised of two

ingredients:- (1) the commission of the

dacoity, and (2) the commission of the

murder in so committing the dacoity.

The first ingredient was proved without

any doubt and was not challenged by the

learned counsel for the appellant. The

second ingredient also was proved in any

event as regards the commission of the

murder because the attention of the

accused was focused not only on the

commission of the offence while

committing the dacoity but also on the

individual part which he took in the

commission of that murder. So far as he

was concerned, he knew from the charge

which was framed against him that he

was sought to be made responsible not

only for the commission of the dacoity

but also for the commission of the

murder in committing such dacoity. The

evidence which was led on behalf of the

prosecution specifically implicated him

and he was named by the prosecution

witnesses as the person who shot at

Mendai while crossing the ditch of the

Pipra Farm. His examination under

section 342 of the Criminal Procedure

Code also brought out that point

specifically against him and he was

questioned in that behalf. Both the

Courts below recorded their concurrent

findings of fact in regard to the part taken

by the appellant in the commission of the

murder of Mendai. Under these

circumstances it could not be urged that

the appellant could not be convicted of

61

the offence under Section 302, Indian

Penal Code if such a charge could be

made out against him (Vide our decision

in Willie (William) Slaney v. State of

Madhya Pradesh, Crl App No. 6 of 1955

D/- 31-10-1955 ( (S) AIR 1956 SC 116)

(F)"

37. The above Constitution Bench judgment of this Court, in

law, squarely applies to the present case. We ought not be

understood to say that the facts of both the cases are

identical. In the case of Shyam Behari (supra), the accused

had killed the deceased while retreating after committing the

dacoity while in the present case the evidence, though

circumstantial, is that the appellant had killed the accused

brutally and then hid his dead body in the fields to destroy the

evidence. Thus, suffice it to note that both the cases have

some similarity in circumstances but the principle of law

stated in Shyam Behari's case (supra) is squarely applicable to

the present case.

38. For the reasons afore-recorded, we are of the considered

view that no prejudice has been caused to the appellant by his

conviction for an offence under Section 302 IPC though he was

62

initially charged with an offence punishable under Section 396

IPC read with Section 201 IPC. Further, the nature of injuries

namely three incised wounds, three abrasions and severing of

the trachea, caused by a sharp-edged weapon as noticed by

the High Court in para 34 of its judgment, indicate that the

accused knew that the injury inflicted would be sufficient in

the ordinary course of nature to cause death. The `prejudice'

has to be examined with reference to the rights and/or

protections available to the accused. The incriminating

evidence had been clearly put to the accused in his statement

under Section 313 Cr.P.C. The circumstances which

constitute an offence under Section 302 were literally put to

him, as Section 302 IPC itself is an integral part of an offence

punishable under Section 396 IPC. The learned counsel

appearing for the appellant has not been able to demonstrate

any prejudice which the appellant has suffered in his right to

defence, fair trial and in relation to the case of the

prosecution. Once the appellant has not suffered any

prejudice, much less a serious prejudice, then the conviction

of the appellant under Section 302 IPC cannot be set aside

63

merely for want of framing of a specific/alternate charge for an

offence punishable under Section 302 IPC. It is more so

because the dimensions and facets of an offence under Section

302 are incorporated by specific language and are inbuilt in

the offence punishable under Section 396 IPC. Thus, on the

application of principle of `cognate offences', there is no

prejudice caused to the rights of the appellant.

39. For the reasons afore-stated, we find no merit in this

appeal and the same is dismissed.

.....................................J.

[Dr. B.S. Chauhan]

.....................................J.

[Swatanter Kumar]

New Delhi;

August 4, 2011