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NON-REPORTABLE

 IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

  CRIMINAL APPEAL NOs. 2216-2217 OF 2010

BHARAMAPPA GOGI …APPELLANT

VERSUS

PRAVEEN MURTHY & ORS. ETC.             …RESPONDENTS

J U D G M E N T

AMITAVA ROY, J.

These appeals register a challenge to the judgment and order  

dated 4.12.2009 rendered in Criminal  Appeal  Nos.  1126 of  2006  

and 1167 of  2006 preferred  by  the  respondent  Nos.  1  and 2 in  

Criminal Appeal No. 2216 of 2010 and respondent No. 1 in Criminal  

Appeal No. 2217 of 2010 respectively.

2. The  appellant-complainant  is  aggrieved  by  the  interference  

with the conviction of the respondents-accused recorded by the trial  

court.  Whereas respondent Nos. 1 and 2 in Criminal Appeal No.  

2216  of  2010  were  convicted  under  Sections  390/392/457  read  

with  Section  34  IPC,  they  were  acquitted  of  the  charge  under

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Section 302 IPC.  The respondent No. 1 in Criminal Appeal No. 2217  

of  2010,  however,  had been additionally  convicted under Section  

302 IPC.  All the three accused were sentenced accordingly.  Though  

the respondents-accused preferred appeals against their conviction,  

as  above,  the  State  refrained  from  doing  so,  more  particularly  

against  the acquittal  of  respondent  Nos.  1  and 2  of  the charge  

under Section 302 IPC.

3. We have heard learned counsel for the parties.

4. The prosecution case relates back to the night of 18.4.2005.  

The deceased Nemiraj Gogi was in his house, while his wife and son  

were  out  of  station.   It  is  alleged  that  the  respondents-accused  

visited  his  house  in  the  said  night,  committed  robbery  of  the  

valuable household items including gold and silver articles and in  

the process, also committed the murder of Nemiraj Gogi.  According  

to the prosecution, the housemaid in the morning, having found the  

deceased body, informed the brother of the deceased, who lodged  

the FIR on 19.4.2005 at 8 A.M. and the investigation was thus set  

in motion. The report mentioned that some unknown persons had  

committed the offence.

5. In  course  of  the  investigation,  recoveries  of  the  valuable  

articles, claimed to be at the instance of the respondents-accused,

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were made. According to the prosecution, recovery of the weapon of  

assault  i.e.  the  knife  and  seizure,  amongst  them,  of  the  blood  

stained  clothes  of  the  deceased  were  also  effected.   The  

respondents-accused were arrested and on the completion of  the  

inquisition,  charge-sheet  under Sections 120B/302/380/394 and  

397 read with Section 34 IPC was laid against them.   The case of  

the prosecution is based on circumstantial evidence.

6. The  trial  court  framed  charges  against  the  respondents-

accused under Sections 120B/302/390/392/457 read with Section  

34 IPC and on the basis of the evidence adduced by the prosecution  

and on a consideration of the other materials on record, convicted  

and sentenced the respondents-accused as above.

7. The High Court, as the impugned judgment and order would  

reveal,  not  only  did find fault  with the trial  court  in omitting to  

frame  charge  under  Section  397  IPC  against  the  respondents-

accused, but also recorded its disapproval of the analysis and the  

appreciation of the evidence on record.  The High Court was, inter  

alia, of the view that the trial court was not justified in acquitting  

the respondent Nos. 1 and 2 in Criminal Appeal No. 1126 of 2006 of  

the charge under Section 302 IPC.  Referring to Sections 386 and  

401 Cr.P.C. and invoking its suo motu power of revision, the High

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Court interfered with the conviction of the respondents-accused and  

remitted the matter to the trial court to frame charge under Section  

397 IPC against the respondents-accused and to undertake a fresh  

consideration of the materials on record.  Liberty was also granted  

to  the  trial  court  to  record  additional  evidence,  if  construed  

necessary.

8. The  learned counsel  for  the  appellant-informant  has  urged  

that having regard to the conspectus of facts on which the case of  

the prosecution is founded, the trial court did not commit any error  

in  not  framing  a  charge  under  Section  397  IPC  against  the  

respondents-accused.  He maintained that the High Court in this  

premise,  ought  not  to  have  interfered  with  their  conviction,  but  

ought  to  have   heard  their  appeals  on merit  after  affording  due  

opportunity to the prosecution to demonstrate that all of them were  

liable to  be convicted on the charges framed and proved against  

them.

9. In  reply,  learned  counsel  for  the  respondents-accused  has  

submitted that he would not join issue with the appellant, if  the  

matter is remanded to the High Court by maintaining the charges  

as framed by the trial court for a decision on the appeals on merits.

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10. We have extended our thoughtful consideration to the debate  

involved. A plain reading of the decision impugned in the instant  

appeals, to start with, reveals that the High Court though the final  

court of facts, did not adequately address itself to the evidence on  

record as required, and instead laid more emphasis on the perceived  

omission on the part of the trial court in  not framing  charge under  

Section 397 IPC against the respondents-accused.  We would refrain  

presently from offering any observation on the merits of the case, for  

obvious reasons.

11. As adverted to hereinabove, the trial court had framed charge  

against  the  respondents-accused  under  Sections  

120B/302/390/392/457   read  with  Section  34  IPC.   For  ready  

reference,  the  texts  of  the  above  legal  provisions  are  set-out  

hereunder:

“120B :P  unishment of criminal conspiracy.—   

(1) Whoever is a party to a criminal conspiracy to  commit  an  offence  punishable  with  death,  [imprisonment for life] or rigorous imprisonment for  a term of  two years or upwards,  shall,  where no  express  provision  is  made  in  this  Code  for  the  punishment of such a conspiracy, be punished in  the same manner as if he had abetted such offence.

(2) Whoever  is  a  party  to  a  criminal  conspiracy  other  than  a  criminal  conspiracy  to  commit  an

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offence punishable as aforesaid shall be punished  with imprisonment of either description for a term  not  exceeding  six  months,  or  with  fine  or  with  both.]

302 -     Punishment for murder  —  Whoever commits  murder  shall  be  punished  with  death,  or  [imprisonment for life], and shall also be liable to  fine.

390  -     Robbery  —In all robbery there is either theft  or extortion.  

392-  Punishment  for  robbery—  Whoever  commits  robbery  shall  be  punished  with  rigorous  imprisonment for a term which may extend to ten  years, and shall also be liable to fine; and, if the  robbery  be  committed  on  the  highway  between  sunset  and  sunrise,  the  imprisonment  may  be  extended to fourteen years.

457  -  Lurking  house-trespass  or  house-breaking    by night in order to commit offence punishable  with  imprisonment—Whoever  commits  lurking  house-trespass  by  night,  or  house-breaking  by  night,  in  order  to  the  committing  of  any  offence  punishable with imprisonment, shall be punished  with imprisonment of either description for a term  which may extend to five years, and shall also be  liable  to  fine;  and,  if  the  offence  intended  to  be  committed is theft,  the term of the imprisonment  may be extended to fourteen years.

34-     Acts done by several persons in furtherance    of  common  intention—When  a  criminal  act  is  done  by  several  persons  in  furtherance  of  the

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common intention of all,  each of such persons is  liable for that act in the same manner as if it were  done by him alone.”

Section 397 IPC reads thus:

“Robbery, or dacoity, with attempt to cause death or  grievous hurt.—If, at the time of committing robbery or  dacoity,  the  offender  uses  any  deadly  weapon,  or  causes  grievous  hurt  to  any  person,  or  attempts  to  cause  death  or  grievous  hurt  to  any  person,  the  imprisonment  with  which  such  offender  shall  be  punished shall not be less than seven years.”

12. Having regard to the number of persons allegedly involved  in  

the offences, as disclosed by the prosecution, the crimes committed  

are of murder in the course of robbery together with lurking house  

trespass and house breaking by night in order to commit offence  

punishable  with  imprisonment  with  common  intention.   Though  

Section   397 IPC deals with robbery or dacoity with attempt to  

cause death or grievous hurt and prescribes  punishment by way of  

imprisonment of not less than seven years, in our view, the High  

Court  ought  to  have  decided  the  appeals  on  merit  without  

remanding the case  to the trial court for fresh adjudication after  

framing  charge  under  Section  397  IPC  and  recording  additional  

evidence, if deemed necessary.

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13. The purpose of framing a charge against an accused person is  

to  acquaint  him with  the  incriminating  facts  and  circumstances  

proposed  to  be  proved  against  him  in  the  trial  to  follow.   The  

principal objective is to afford him an opportunity of preparing his  

defence  against  the  charge.   The  possibility  of  prejudice  to  the  

accused arises, if he is not made conversant with the entire gamut  

of  facts  constituting  the  accusations leveled  against  him,  as  has  

been  consistently  propounded  by  this  Court,  amongst  others,  in  

V.C. Shukla vs. State through CBI (1980) Supp. SCC 92.  Though  

Section 397 IPC, having regard to the case of the prosecution, may  

not  be  wholly  irrelevant,  the  charges  framed  against  the  

respondents-accused by the trial  court,  do adequately encompass  

all essential facts building up the offences imputed against them.    

14. In  view of  the  inclusion of  Section 34 IPC in  the  array  of  

offences, for which the respondents-accused had been charged by  

the trial court, as well as the facts and the evidence sought to be  

relied upon by the prosecution, in our estimate, the order of remand  

was not called for and the appeals should have been decided on  

merits, on the basis of the charges already framed and the materials  

on record.    The deduction of the High Court that the omission to  

frame charge under Section 397 IPC has resulted in miscarriage of

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justice is unconvincing in the facts of this case.  That meanwhile  

more  than  a  decade  has  passed  since  the  date  of  the  incident,  

cannot also be readily over-looked.  

15. On an overall consideration of the above aspects, we are not  

inclined to sustain the impugned decision.  It is, thus, set-aside.  

The criminal Appeal Nos. 1126 of 2006 and 1167 of 2006 filed by  

the  respondents-accused  before  the  High  Court  are  restored  to  

their original numbers, for disposal afresh in accordance with law  

on the basis of the charges already framed and the evidence on  

record.   We make it clear that we have not offered any observation  

on the merits of the case.       

16. The appeals are disposed of in the above terms.  

……..……………………..….J.  (S.A. BOBDE)

……..……………………..….J.  (AMITAVA ROY)

NEW DELHI; FEBRUARY 9,  2016.