REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.1568 OF 2015

KAMIL …..Appellant

VERSUS

STATE OF UTTAR PRADESH …..Respondent

J U D G M E N T

R. BANUMATHI, J.

This appeal arises out of the judgment dated 28.07.2014

passed by the High Court of Allahabad in Criminal Appeal No.1047

of 1989 in and by which the High Court has dismissed the appeal

filed by the appellant thereby affirming his conviction under Section

302 IPC and for other offences and sentence of life imprisonment

imposed upon him passed by the trial court.

2.Brief facts of the case are that on 03.01.1986 at about

09.00 AM, complainant-Baboo Khan (PW-3) who is the maternal

uncle of deceased Akhlaq was informed by his father that his

sister’s daughter Parveen had gone to fetch water from the tank

where accused Rashid (A1) and Adil (A3) had misbehaved with her.

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However, no further action was taken by them to save their

reputation. On the same day, at around 04.00 PM, when

complainant/PW-3 along with his nephew deceased Akhlaq and

Aadil Hussain (PW-2) were going towards his shop, they saw

accused Rashid armed with knife, Nasir (A2) armed with hockey,

accused Adil and appellant-Kamil (A4) armed with danda in their

hands coming towards them and surrounded PW-1, deceased

Akhlaq and PW-3. Thereafter, appellant-Kamil gave a danda blow

on the head of PW-2 and when deceased Akhlaq tried to snatch the

hockey stick from accused Nasir, appellant-Kamil also gave a

danda blow on the head of deceased from behind and when he

tried to run away, accused Nasir and Adil caught hold of deceased

and thereafter accused Rashid stabbed the knife in the chest of

deceased on which deceased fell down on the ground with the knife

which was stabbed on his chest. On raising alarm by PW-3, Jamal

Uddin (PW-1) along with other people came there for help.

Thereafter, all the accused ran away and deceased was taken to

the hospital, where he died. Upon completion of investigation,

charge sheet was filed against the accused persons.

3.Charges were framed against the accused under Sections

302, 302 read with Section 34, 323 and 323 read with Section 34

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IPC. To bring home the guilt of the accused, the prosecution

examined eight witnesses and exhibited number of documents.

4.Upon consideration of evidence adduced, the trial court vide

its judgment dated 01.05.1989 convicted the accused as under:-

Accused Conviction Sentence

Rashid (A1)Section 302 IPC

Section 323 read with Section 34

IPC

Life Imprisonment

One month R.I.

Nasir (A2)Section 302 read with Section 34

IPC

Section 323 read with Section 34

IPC

Life Imprisonment

One month R.I.

Adil (A3) Section 302 read with Section 34

IPC

Section 323 read with Section 34

IPC

Life Imprisonment

One month R.I.

Kamil (A4)Section 302 read with Section 34

IPC

Section 323 IPC

Life Imprisonment

One month R.I.

5.Being aggrieved, the appellant/accused filed appeal before

the High Court which came to be dismissed vide impugned

judgment dated 28.07.2014. Further, appeal preferred by the

accused Nasir before the Supreme Court in SLP(Crl) No.9886 of

2014 was dismissed vide order dated 22.01.2015.

6.Prosecution relies upon the evidence of eye-witness

Babu/Baboo Khan (PW-3), Jamaluddin (PW-1) and Aadil (PW-2)

who have categorically stated that on the date of incident i.e on

03.01.1986 at 04.00 PM, PW-3 along with his nephew deceased

Akhlaq and Adil Hussain (PW-2) was going to his shop at Jogipura

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and when they reached near the temple at Lalpur, they saw all the

four accused persons standing and waiting for them. PW-3 further

deposed that at that time accused Rashid was having knife in his

hand whereas accused Nasir and Kamil were having hockey and

danda in their hands respectively. Immediately thereafter,

appellant/accused Kamil gave a danda blow on the head of Adil

Hussain (PW-2). When deceased Akhlaq tried to snatch hockey

stick from accused Nasir, appellant/accused Kamil gave a danda

blow on the head of deceased Akhlaq from behind. When deceased

Akhlaq tried to run away in order to escape himself, accused Nasir

and Adil caught hold of his both hands and at the same time,

appellant/accused Kamil assaulted Adil (PW-2) with danda. When

PW-3 snatched danda from appellant/accused Kamil and tried to

retaliate to the attack with the same danda, accused Rashid pierced

knife in the chest of deceased Akhlaq. At this, PW-3 shouted for

help and on hearing this, Jamaluddin (PW-1), Afsar Ali Khan and

Shamshad Hussain who were taking tea at the stall of PW-3 rushed

towards the spot. On seeing them, accused persons fled away from

the spot. Thereafter, PW-3 took a cycle-rickshaw and took

deceased Akhlaq to district hospital. Deceased Akhlaq was

struggling for his life as the knife was still penetrated in his heart.

PW-3 deposed that he himself took out the knife from the chest of

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deceased. In the hospital, deceased succumbed to injuries. The

evidence of PW-3 and injured eye-witnesses Aadil Hussain (PW-2)

and Jamaluddin (PW-1) is cogent and consistent.

7.Contention of the appellant is that charge under Section 302

IPC was not framed against him and therefore the conviction of the

appellant/accused under Section 302 IPC is not maintainable.

Contention of the appellant is that non-framing of charge under

Section 302 IPC has caused prejudice to him. It was further

submitted that even though the question being a substantive

question, the appellant is at liberty to raise the same at any stage.

8.Placing reliance upon Section 464 Cr.P.C., learned counsel

appearing for the respondent-State submitted that a conviction

would be valid even if there is any omission to frame charge

provided it has not occasioned a “failure of justice”. Taking us

through the judgment of the trial court and the High Court, the

learned counsel submitted that the appellant was well-aware of the

gist of charges under Section 302 IPC against him and in fact the

appellant has taken the “plea of alibi”. It was submitted that even if

there was absence of charge, the appellant has not proved “failure

of justice” has in fact been occasioned and the conviction of the

appellant recorded by the concurrent findings of the trial court and

the High Court under Section 302 IPC cannot be interfered.

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9.We have considered the rival contentions and perused the

impugned judgment and materials placed on record.

10.Section 464 of the Code relates to the effect of omission to

frame, or absence of, or error, in charge. Sub-section (1) thereof

provides that no finding, sentence or order of a court of competent

jurisdiction shall be deemed invalid merely on the ground that no

charge was framed or on the ground of any error, omission or

irregularity in the charge including any misjoinder of charge, unless,

in the opinion of the court of appeal, confirmation or revision, a

failure of justice has in fact been occasioned thereby. Section 464

Cr.P.C. reads as under:-

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

(1) No finding, sentence or order by a Court of competent jurisdiction shall

be deemed invalid merely on the ground that no charge was framed or on

the ground of any error, omission or irregularity in the charge including

any misjoinder of charges, unless, in the opinion of the Court of appeal,

confirmation or revision, a failure of justice has in fact been occasioned

thereby.

(2) If the court of appeal, confirmation or revision is of opinion that a

failure of justice has in fact been occasioned, it may—

(a) in the case of an omission to frame a charge, order that a

charge be framed and that the trial be recommenced from the

point immediately after the framing of the charge;

(b) in the case of an error, omission or irregularity in the charge,

direct a new trial to be had upon a charge framed in whatever

manner it thinks fit.”

11.Absence of charge would vitiate the conviction only if it has

caused prejudice to the accused and has in fact been occasioned

thereby. In Willie (William) Slaney v. State of Madhya Pradesh

AIR 1956 SC 116, the Constitution Bench explained the concept of

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“prejudice caused to the accused” and “failure of justice” and held as

under:-

“5. Before we proceed to set out our answer and examine the provisions

of the Code, we will pause to observe that the Code is a code of

procedure and, like all procedural laws, is designed to further the ends of

justice and not to frustrate them by the introduction of endless

technicalities. The object of the Code is to ensure that an accused person

gets a full and fair trial along certain well-established and well-understood

lines that accord with our notions of natural justice.

If he does, if he is tried by a competent court, if he is told and clearly

understands the nature of the offence for which he is being tried, if the

case against him is fully and fairly explained to him and he is afforded a

full and fair opportunity of defending himself, then, provided there is

‘substantial’ compliance with the outward forms of the law, mere mistakes

in procedure, mere inconsequential errors and omissions in the trial are

regarded as venal by the Code and the trial is not vitiated unless the

accused can show substantial prejudice. That, broadly speaking, is the

basic principle on which the Code is based . (Underlining added)

12.The Constitution Bench then examined as to whether the

procedure followed by the court has caused actual injustice to the

accused and held as under:-

“12. ……Except where there is something so vital as to cut at the root of

jurisdiction or so abhorrent to what one might term natural justice, the

matter resolves itself to a question of prejudice. Some violations of the

Code will be so obvious that they will speak for themselves as, for

example, a refusal to give the accused a hearing, a refusal to allow him to

defend himself, a refusal to explain the nature of the charge to him and so

forth. These go to the foundations of natural justice and would be struck

down as illegal forthwith. It hardly matters whether this is because

prejudice is then patent or because it is so abhorrent to well-established

notions of natural justice that a trial of that kind is only a mockery of a trial

and not of the kind envisaged by the laws of our land, because either way

they would be struck down at once. Other violations will not be so obvious

and it may be possible to show that having regard to all that occurred no

prejudice was occasioned or that there was no reasonable probability of

prejudice. In still another class of case, the matter may be so near the

border line that very slight evidence of a reasonable possibility of

prejudice would swing the balance in favour of the accused.

43. ….. Every reasonable presumption must be made in favour of an

accused person; he must be given the benefit of every reasonable doubt.

The same broad principles of justice and fair play must be brought to bear

when determining a matter of prejudice as in adjudging guilt. But when all

is said and done, what we are concerned to see is whether the accused

had a fair trial, whether he knew what he was being tried for, whether the

main facts sought to be established against him were explained to him

fairly and clearly and whether he was given a full and fair chance to

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defend himself. If all these elements are there and no prejudice is shown,

the conviction must stand whatever the irregularities whether traceable to

the charge or to a want of one.”

13.Following the Constitution Bench in Willie Slaney case, the

bench of three Judges of this Court in Gurbachan Singh v. State of

Punjab, AIR 1957 SC 623 observed that the Court is not to looking

into technicalities, but to the substance and held as under:-

“7. …..in judging a question of prejudice, as of guilt, courts must act with a

broad vision and look to the substance and not to technicalities, and their

main concern should be to see whether the accused had a fair trial,

whether he knew what he was being tried for, whether the main facts

sought to be established against him were explained to him fairly and

clearly and whether he was given a full and fair chance to defend

himself…….”

14.After considering the meaning of the expression “failure of

justice” and after referring to the Constitution Bench in Willie

Slaney and Gurbachan Singh, this Court in Main Pal v. State of

Haryana (2010) 10 SCC 130, held as under:-

15. In Shamnsaheb M. Multtani v. State of Karnataka (2001) 2 SCC 577,

this Court considered the meaning of the expression “failure of justice”

occurring in Section 464 Cr.PC. This Court held thus:

“……

22. … a conviction would be valid even if there is any omission or

irregularity in the charge, provided it did not occasion a failure of

justice.

23. … The criminal court, particularly the superior court should

make a close examination to ascertain whether there was really a

failure of justice or whether it is only a camouflage.

……..”

16. The above principles are reiterated in several decisions of this Court,

including State of W.B. and Another v. Laisal Haque and Others (1989) 3

SCC 166, State of A.P. v. Thakkidiram Reddy and Others (1998) 6 SCC

554, Dalbir Singh v. State of U.P. (2004) 5 SCC 334, Dumpala Chandra

Reddy v. Nimakayala Balireddy and Others (2008) 8 SCC 339 and

Sanichar Sahni v. State of Bihar (2009) 7 SCC 198.

17. The following principles relating to Sections 212, 215 and 464 of the

Code, relevant to this case, become evident from the said enunciations:

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(i) The object of framing a charge is to enable an accused to have

a clear idea of what he is being tried for and of the essential facts

that he has to meet. The charge must also contain the particulars

of date, time, place and person against whom the offence was

committed, as are reasonably sufficient to give the accused notice

of the matter with which he is charged.

(ii) The accused is entitled to know with certainty and accuracy,

the exact nature of the charge against him, and unless he has

such knowledge, his defence will be prejudiced. Where an

accused is charged with having committed offence against one

person but on the evidence led, he is convicted for committing

offence against another person, without a charge being framed in

respect of it, the accused will be prejudiced, resulting in a failure of

justice. But there will be no prejudice or failure of justice where

there was an error in the charge and the accused was aware of

the error. Such knowledge can be inferred from the defence, that

is, if the defence of the accused showed that he was defending

himself against the real and actual charge and not the erroneous

charge.

(iii) In judging a question of prejudice, as of guilt, the courts must

act with a broad vision and look to the substance and not to the

technicalities, and their main concern should be to see whether

the accused had a fair trial, whether he knew what he was being

tried for, whether the main facts sought to be established against

him were explained to him fairly and clearly, and whether he was

given a full and fair chance to defend himself. (Underlining

added)

15.In Darbara Singh v. State of Punjab (2012) 10 SCC 476, this

Court considered the similar issue and came to the conclusion that

the accused has to satisfy the court that there is any defect in

framing the charge which has prejudiced the cause of the accused

resulting in failure of justice. It is only in that eventuality the court

may interfere. The Court elaborated the law as under:-

“20. The defect in framing of the charges must be so serious that it cannot

be covered under Sections 464/465 Cr.P.C, which provide that, an order

of sentence or conviction shall not be deemed to be invalid only on the

ground that no charge was framed, or that there was some irregularity or

omission or misjoinder of charges, unless the court comes to the

conclusion that there was also, as a consequence, a failure of justice. In

determining whether any error, omission or irregularity in framing the

relevant charges, has led to a failure of justice, the court must have

regard to whether an objection could have been raised at an earlier stage

during the proceedings or not. While judging the question of prejudice or

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guilt, the court must bear in mind that every accused has a right to a fair

trial, where he is aware of what he is being tried for and where the facts

sought to be established against him, are explained to him fairly and

clearly, and further, where he is given a full and fair chance to defend

himself against the said charge(s).

21. ‘Failure of justice’ is an extremely pliable or facile expression, which

can be made to fit into any situation in any case. The court must

endeavour to find the truth. There would be ‘failure of justice’; not only by

unjust conviction, but also by acquittal of the guilty, as a result of unjust

failure to produce requisite evidence. Of course, the rights of the accused

have to be kept in mind and also safeguarded, but they should not be

overemphasised to the extent of forgetting that the victims also have

rights. It has to be shown that the accused has suffered some disability or

detriment in respect of the protections available to him under the Indian

criminal jurisprudence. ‘Prejudice’ is incapable of being interpreted in its

generic sense and applied to criminal jurisprudence. The plea of prejudice

has to be in relation to investigation or trial, and not with respect to

matters falling outside their scope. Once the accused is able to show that

there has been serious prejudice caused to him, with respect to either of

these aspects, and that the same has defeated the rights available to him

under criminal jurisprudence, then the accused can seek benefit under

the orders of the court. (Vide Rafiq Ahmad alias Rafi v. State of U.P.

(2011) 8 SCC 300, SCC p. 320, para 36; Rattiram and Others v. State of

M.P. Through Inspector of Police (2012) 4 SCC 516 and Bhimanna v.

State of Karnataka (2012) 9 SCC 650)” (Underlining added)

16.The question falling for consideration is whether non-framing

of charge has caused prejudice in the present case. In order to

judge whether a failure of justice has been occasioned, it is relevant

to examine whether the accused was aware of the basic ingredients

of the offence for which he is being convicted and whether they

were explained to him and whether he got a fair chance to defend.

The crux of the issue is whether in this case, omission to frame

charge under Section 302 IPC has vitiated conviction of the

appellant/accused.

17.The charges framed against the accused are as under:-

“Charges

I, C.P. Singh, Special Judge (E.C. Act), Budaun hereby charge you

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1.Nasir s/o Wali Mohammad r/o Oopar Para P.S. Kotwali, Badaun

2.Adil r/o

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

Firstly:- That you Rashid on 03.01.1986 at about 04.00 PM in

Mohalla Oopar Para near Lalpul Budaun, P.S. Kotwali Budaun, formed

common intention to make murderous assault on Akhlaq and anyone else

who came to his rescue and in furtherance of said common intention

Rashid did commit murder by intentionally causing the death of aforesaid

Akhlaq and you thereby committed an offence punishable under Section

302/34 of the Indian Penal Code and within my cognizance.

Secondly:-That you Adil on aforesaid date, time and place voluntarily

caused Adil and thereby committed an offence punishable under Section

323 of the Indian Penal Code and within my cognizance.

Thirdly:- That on aforesaid date, time and place you Kamil and

Nasir along with Rashid and Adil formed common intention to cause hurt

to Adil and anyone else and in furtherance of said common intention Adil

voluntarily caused hurt to Adil and you thereby committed an offence

punishable under Section 323/34 of the Indian Penal Code and within my

cognizance.

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

charges.

(C.P. Singh)

Addl. District Judge,

Special Judge (E.C. Act),

Budaun 18.09.1986”

18.As seen from the above, charge was not framed against the

appellant under Section 302 read with Section 34 IPC. But it is for

the accused to prove that omission to frame charge has occasioned

in a failure of justice. Though specific charge under Section 302

read with Section 34 IPC was not framed, the gist of the charge

sheet filed against the appellant/accused clearly shows that the

accused has been charged for the offence under Section 302 read

with Section 34 IPC as seen from the following:-

“Sir,

On 03.01.1986, the complainant came to the Police Station

Kotwali and orally informed that his niece went to take water from the tap.

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She was teased by the accused but they did not make it an issue due to

the respect in the society. However, there was an ugly quarrel over there.

He pacified his niece. I along with Adil and Akhlaq today were going to my

shop situated at Jogipuraat about 04.00 PM, when we reached near

Lalpur Mandir, accused mentioned in Column No.2 and 3 were present

there. Kamil was carrying a Danda Nasir was carrying a hockey and

Rashid was carrying knife in their hands. They surrounded us. They

abused my nephew Adil. Adil protested about abusing and said that it

would not be good if you continue. On this accused hit my nephew with

danda. I snatched danda from Kamil to save my nephew. Accused

Nasir and Adil caught hold my nephew and Rashid poked the knife

in his chest. My nephew sat down on the earth and his condition started

deteriorating. I carried him to hospital where he died. On the basis of this

information a crime case No.2/86 u/s 302/323/34 IPC. Accused Rashid

and others were arrested and were sent to jail. Accused Kamil is not

available and the investigation is going on against him. The charge sheet

is filed u/s 302/323/34 IPC against these accused persons. Dated

13.01.1986.”

In the charges framed, even if the appellant and accused Nasir

were charged only under Section 323 read with Section 34 IPC, the

gist of the charge sheet clearly alleges their sharing of common

intention in committing the murder of Akhlaq with the first accused

Rashid.

19.It is pertinent to note that after filing of the charge sheet, case

was committed to the court of Sessions. The trial court has pointed

out that the accused persons were charged under Sections 302,

302/34, 323 and 323/34 IPC to which they pleaded not guilty and

opted for trial. The appellant/accused has thus clearly understood

that charge has been framed against him under Section 302 IPC

read with Section 34 IPC. If really, the appellant was under the

impression that no charge was framed against him under Section

302 read with Section 34 IPC, the appellant would have raised the

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objection for his committal to the Sessions Court. It is also to be

pointed out that the appellant has not raised the objection as to non-

framing of charges at the earliest point of time namely the trial court

and the first appellate court - High Court.

20.Learned counsel for the appellant made submissions

contending that even the relevant questioning showing sharing of

common intention of the appellant has not been put to the accused

during questioning under Section 313 Cr.P.C. The above contention

does not merit acceptance as seen from the following:-

“Q.4It has come in the evidence that on 03.01.1986 at about 04.00 PM

near Lal Pul Mandir, you accused Kamil and Nasir carrying danda

and hockey caused injuries to Adil (nephew of witness). You

accused Nasir and Adil caught hold Akhalq and at the instance of

accused Kamil you accused Rashid stabbed the knife in the chest

of Akhlaq and caused murder. What do you say about it?

Ans. It is wrong.”

Question No.5 relates to the lodging of complaint by the informant

Babu. Question No.10 relates to the filing of the charge sheet

against the appellant and other accused. As pointed out in para

(14) above, the gist of the charge sheet clearly alleges sharing of

common intention by the appellant/accused. In our considered view,

the procedure followed by the Court in the instant case has neither

caused prejudice to the appellant nor deprived him of principles of

Natural Justice.

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21.It is also to be pointed out that in the High Court, the appellant

has not raised any grievance as to non-framing of charge under

Section 302 read with Section 34 IPC and that it has caused

prejudice to him. On the other hand, the learned counsel appearing

for the appellant only contended that the appellant Kamil ought not

to have been convicted by invoking the principle of vicarious liability

enshrined by Section 34 IPC. All these aspects clearly show that

the appellant clearly understood that charge under Section 302 read

with Section 34 IPC has been framed against him and throughout

he has been defending himself only for the charge under Section

302 IPC. In such facts and circumstances, it cannot be said that the

failure of justice has occasioned to him and the absence of a charge

under Section 302 read with Section 34 IPC cannot be said to have

caused any prejudice to him.

22.In Mohan Singh v. State of Bihar (2011) 9 SCC 272, where

the appellants therein for the first time raised the points relating to

errors in framing of charge before the Supreme Court, this Court

held as under:-

“14. In a case where points relating to errors in framing of charge or even

misjoinder of charge are raised before this Court for the first time, such

grievances are not normally considered by this Court. Reference in this

connection may be made to the decision of a three-Judge Bench of this

Court in Mangal Singh and Others v. State of Madhya Bharat AIR 1957

SC 199. Imam, J. delivering a unanimous opinion of the Court held in

para 5 at p. 201 of the Report as follows:

“5. It was, however, urged that there had been misjoinder of

charges. This point does not seem to have been urged in the High

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Court because there is no reference to it in the judgment of that

Court and does not seem to have been taken in the petition for

special leave. The appellants cannot, therefore, be permitted to

raise this question at this stage.”

23.It is also pertinent to point out that the appeal preferred by

the similarly situated co-accused Nasir has been dismissed by this

Court. A conviction for the substantive offence without a charge

can be set aside only if the accused shows that prejudice has been

caused to him and that “failure of justice” has occasioned thereby.

No such argument was ever made before the trial court or before

the High Court. As discussed above in our considered view, no

prejudice has been caused to the accused nor failure of justice has

been shown to have been occasioned warranting interference with

the impugned judgment.

24.In the result, the appeal is dismissed.

…………….……………J.

[R. BANUMATHI]

…………….……………J.

[INDIRA BANERJEE]

New Delhi;

October 31, 2018

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