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    REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION/

CRIMINAL APPEAL NO.1116 OF 2011

Chinnam Kameswara Rao & Ors. …Appellants

Versus

State of A.P. Rep. by Home Secretary …Respondent

J U D G M E N T

T.S. THAKUR, J.

1. This  appeal  under  Section  2(a)  of  the  Supreme  Court  

(Enlargement of Criminal Appellate Jurisdiction) Act, 1970 assails a  

judgment and order dated 8th February, 2011 passed by the High  

Court of Andhra Pradesh at Hyderabad, whereby the High Court has  

partly  allowed  the  acquittal  appeal  filed  by  the  State  and  while  

reversing the judgment and order passed by the trial Court convicted  

the appellants for offences punishable under Section 302 read with  

Section 34 of the IPC and sentenced them to undergo imprisonment  

for  life  besides  levying  a  fine  of  Rs.1,000/-  each.   In  default  of  

payment  of  fine  the  appellants  have  been  sentenced  to  undergo  

simple imprisonment for a period of one month each. The appellants  

have been further convicted for an offence punishable under Section  

324 read with Section 34 of the IPC and sentenced to undergo simple

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imprisonment  for  three  months  each  with  the  direction  that  the  

sentences shall run concurrently.   

2. Briefly stated the prosecution case is that on 27th April, 2003,  

at around 7.00 p.m., the appellants along with one Papisetti Praveen  

who was arrayed as accused no.4 stopped the deceased-Bezawada  

Srinivasa Rao and PW.1-Alapati  Seshadri  while  the  latter  were  on  

their way home at Bethavolu Park Centre - the place of occurrence.  

An altercation between the accused persons on the one hand and the  

deceased and PW-1 on the other had according to the prosecution  

taken place on the previous day i.e. on 26th April, 2003, while the  

deceased  and  PW.1  were  bringing  some palmyrah  nuts  from the  

fields. PW-3-Sonti Koteswara Rao, a shopkeeper who runs a pan shop  

in  the  vicinity,  claimed to  be  a  witness  to  that  incident  and  had  

intervened  and  pacified  the  parties  which  passed  off  without  any  

physical harm to either side except that according to the prosecution  

appellant  no.1-Chinnam  Kameswara  Rao  had  threatened  the  

deceased with dire consequences.  With the above incident in the  

background  on  27th April,  2003,  the  accused  persons  allegedly  

confronted  the  deceased  and  PW-1-Alapati  Seshadri,  armed  with  

stout  casuarina sticks except accused no.4 who was unarmed. An  

altercation followed between the two sides as a sequel to the incident  

of the previous day in the course whereof appellant no.1-Chinnam

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Kameswara Rao is alleged to have struck a blow on the head of the  

deceased.  When PW-1-Alapati  Seshadri intervened, the remaining  

two appellants came down upon him and gave stick blows on his head  

also.  The injured, as also Alapati Seshadri-PW-1 fell to the ground,  

whereupon A-4 is alleged to have kicked and given fist blows to the  

deceased while A-1 to A-3 continued to indiscriminately hit both of  

them with their  sticks which  caused bleeding injuries  to  both  the  

injured.  Taking both of them as dead, the appellants are alleged to  

have run away from the spot towards the house of appellant no.1.  

Sonti Srinivasa Rao S/o Nageswara Rao (PW-2), Sonti Koteswara Rao  

(PW-3), Sonti Srinivasa Rao, S/o Veeraiah (PW-4) and M.V. Gopala  

Krishna Murthy (PW-6) are alleged to have witnessed the incident.  

PW-2-Sonti  Srinivasa  Rao  with  the  help  of  one  P.  Vasudeva  Rao  

shifted both the injured to the Government Hospital, Gudivada for  

treatment who informed the Gudivada Town I Police Station about  

the arrival of the injured in the hospital whereupon PW-9-B. Jaya  

Raju, ASI, reached the hospital and recorded the statement of the  

deceased, marked Exhibit P-6.  A case under Section 324 read with  

34 IPC was on the basis of that statement registered and the injured  

shifted  to  the  University  General  Hospital,  Vijaywada  for  further  

treatment.  Around  2.50  a.m.  on  28th April,  2003,  the  deceased  

succumbed to his injuries in the hospital at Vijayawada whereupon

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the Investigating Officer altered the offence from Section 324 read  

with Section 34 IPC to Section 302 read with Section 34 IPC.  

3. After  completion of investigation that included the arrest of  

the accused persons, post mortem of the dead body of the deceased,  

seizure of the weapons of offence, the police filed a charge sheet  

against  the  appellants  for  offences  punishable under  Sections 302  

and 307 IPC while A-4 was charged under Sections 302 and 307 read  

with Section 34 IPC.

4. At the trial the prosecution examined as many as 13 witnesses  

including PWs.2, 3, 4 and 6, said to be eye witnesses to the incident.  

The accused did not  lead any evidence in their  defence.  The trial  

Court all the same came to the conclusion that the prosecution had  

not been able to establish the charge framed against the accused  

persons and accordingly acquitted them.   

5. Aggrieved by the judgment and order of the acquittal recorded  

by the trial Court the State filed Criminal Appeal No.1055 of 2007  

before the High Court of Andhra Pradesh at Hyderabad which appeal  

was allowed in  part  reversing the  acquittal  of  the  appellants  and  

convicting them for offences punishable under Section 302 read with  

Section 34 IPC and Section 324 read with Section 34 of the IPC. The  

acquittal of accused No.4 was, however, affirmed by the High Court.  

The  appellants  were  consequently  sentenced  to  undergo

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imprisonment for life apart from imprisonment for a period of three  

months  under  Section  324  IPC  as  already  noticed  above.  The  

sentences  were  directed  to  run  concurrently.  The  present  appeal  

assails the correctness of the above judgment and order.

6. Appearing for the appellants Mr. M.S. Ganesh, learned senior  

counsel, made a three-fold submission. Firstly, he contended that the  

High Court was in error in embarking upon a fresh appraisal of the  

evidence adduced by the prosecution at the trial and interfering with  

the order of acquittal passed by the trial Court just because in the  

opinion of the High Court a second view was equally reasonable in the  

facts and circumstances of the case.  He urged that acquittal of the  

accused persons reinforced their innocence and except in compelling  

circumstances  where  the  acquittal  is  seen  to  have  resulted  in  

miscarriage of justice or where appreciation of evidence is perverse or  

manifestly unsatisfactory, the High Court should not have converted  

the acquittal into a conviction.   

7. Secondly, he contended that the High Court could not have  

convicted the appellants for offences punishable under Sections 302  

and 307 both read with Section 34 IPC when the charges framed  

against  the  appellants  were  only  for  offences  punishable  under  

Sections 302 and 307 of the IPC.  It was also contended that accused  

No.4, since acquitted by the Courts below, alone was charged with

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Section 302 read with Section 34 IPC.   The  High Court  was not,  

therefore,  justified  in  convicting  the  appellants  for  the  offence  of  

murder or attempt to murder with the help of Section 34 of the Code.  

The absence  of  a  charge  under  Section 34 had,  according to  the  

learned counsel, resulted in prejudice and miscarriage of justice to  

the appellants.   

8. Thirdly, it  was  contended  that  on  a  true  and  proper  

appreciation of the evidence adduced at the trial there was no real  

basis for the High Court to hold that the appellants had the common  

intention to commit the murder of the deceased. In the absence of  

any  evidence  to  support  the  allegation  that  the  appellants  had  a  

common intention to kill the deceased, their conviction for the offence  

of murder punishable under Section 302 IPC was not justified.  At any  

rate, the evidence did not support the charge of murder which could  

be appropriately converted to culpable homicide not  amounting to  

murder punishable under Section 304 Part I or II of the IPC.     

9. We propose to deal with the submissions ad seriatim.

10. The powers of Appellate Court are stipulated in Section 386 of  

the Code of Criminal Procedure,  1973. A bare reading of the said  

provision leaves no manner of doubt that in an appeal against an  

order of acquittal the Appellate Court may reverse such order and  

direct that further inquiry be made or that the accused be re-tried, as

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the case may be or impose a sentence upon him according to law.  

Similarly in the case of appeal from a conviction the Appellate Court  

has the power to reverse the findings recorded by the trial Court and  

discharge the accused or pass an order for his re-trial etc.   

11. The plenitude of the power available to the Appellate Court  

notwithstanding recent pronouncements of this Court has evolved a  

rule of prudence according to which the Appellate Court must bear in  

mind that in the case of acquittal the innocence of the accused is  

doubly assured by his  acquittal.   Consequently,  if  two reasonable  

conclusions are possible on the basis of the evidence on record the  

Appellate  Court  should  not  disturb  the  findings  of  the  acquittal  

recorded in favour of the accused.  A long line of decisions rendered  

by this Court have recognised that while deciding acquittal appeal the  

power  of  the  Appellate  Court  is  in  no  way  circumscribed  by  any  

limitation and that  power is exercisable by the Appellate Court  to  

comprehensively review the entire evidence.  The decisions of this  

Court in  Dhanna etc. v. State of  Madhya Pradesh (1996) 10  

SCC 79 and Kallu @ Masih & Ors. v. State of Madhya Pradesh   

(2006) 10 SCC 313 aptly summarise the legal position.  A recent  

decision of this Court in  Murugesan & Ors. v. State 2012 (10)  

SCALE 378 is a timely reminder of the principles that were succinctly  

enunciated in an earlier decision of this Court in Chandrappa & Ors.

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v. State of Karnataka (2007) 4 SCC 415, in the following words:

“42.  From the above decisions, in our considered view, the   following general principles regarding powers of the appellate   court  while  dealing  with  an  appeal  against  an  order  of   acquittal emerge:

(1) An appellate court has full power to review, re-appreciate   and reconsider the evidence upon which the order of acquittal   is founded.

(2) The Code of Criminal Procedure, 1973 puts no limitation,   restriction  or  condition  on  exercise  of  such  power  and  an   appellate court on the evidence before it may reach its own   conclusion, both on questions of fact and of law.

(3) Various expressions, such as, "substantial and compelling   reasons",  "good  and  sufficient  grounds",  "very  strong  circumstances",  "distorted  conclusions",  "glaring  mistakes",   etc.  are  not  intended  to  curtail  extensive  powers  of  an   appellate  court  in  an  appeal  against  acquittal.  Such   phraseologies  are  more  in  the  nature  of  "flourishes  of   language" to emphasise the reluctance of an appellate court to   interfere with acquittal than to curtail the power of the court   to review the evidence and to come to its own conclusion.

(4) An appellate court, however, must bear in mind that in   case of acquittal, there is double presumption in favour of the   accused. Firstly, the presumption of innocence is available to   him under the fundamental principle of criminal jurisprudence   that every person shall be presumed to be innocent unless he   is proved guilty by a competent court of law. Secondly, the   accused having secured his acquittal, the presumption of his   innocence is further reinforced, reaffirmed and strengthened   by the trial court.

(5) If two reasonable conclusions are possible on the basis of   the evidence on record, the appellate court should not disturb   the finding of acquittal recorded by the trial court.”

(emphasis supplied)

12. What,  therefore,  needs  to  be  examined in  the  light  of  the  

settled legal position is whether  the view taken by the trial  Court  

acquitting the accused was a reasonably possible view. If the answer  

is  in  the  negative  nothing  prevents  the  Appellate  Court  from

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reversing the view taken by the trial Court and holding the accused  

guilty.  On the contrary, if the view is not a reasonably possible view  

the  Appellate  Court  is  duty  bound  to  interfere  and  prevent  

miscarriage of justice by suitably passing the order by punishing the  

offender.  We  have  in  that  view  no  hesitation  in  rejecting  the  

contention that just because the trial Court had recorded an acquittal  

in favour of the appellants the Appellate Court had any limitation on  

its power to reverse such an acquittal. Whether or not the view was  

reasonably possible will be seen by us a little later when we take up  

the  merits  of  the  contention  urged  by  the  appellant  regarding  

involvement of the accused persons in the commission of the crime.

13. That brings us to the question whether absence of a charge  

under Section 34 of the IPC would by itself operate as an impediment  

in the Appellate Court recording a conviction with the help of that  

provision. The decision of this Court provide a complete answer to  

that  contention  to  which we may immediately  refer.   In  Krishna  

Govind Patil v. State of Maharashtra AIR 1963 SC 1413 the trial  

Court  had acquitted all  the accused persons while the High Court  

convicted them under Section 302 read with Section 34 IPC.  This  

Court  held  that  the  High  Court  could  convict  the  accused  under  

Section 34 even if the named accused were acquitted provided the  

High Court held that there were other unnamed accused persons who

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were  involved  in  the  commission  of  the  offence.   The  following  

passage from the said decision is, in this regard, apposite:

“It is well settled that common intention within the meaning   of the section implied a pre-arranged plan and the criminal act   was done pursuant to the pre-arranged plan. The said plan   may  also  develop  on  the  spot  during  the  course  of  the   commission  of  the  offence;  but  the  crucial  circumstance  is   that  the  said  plan  must  precede  the  act  constituting  the   offence.  If  that  be so, before a court  can convict  a person   under  s. 302,  read with  s. 34,  of  the  Indian Penal  Code,  it   should come to a definite conclusion that the said person had   a prior  concert  with  one or more other  persons,  named or   unnamed, for committing the said offence. A few illustrations   will bring out the impact of s. 34 on different situations.

(1) A, B, C and D are charged under s. 302, read with s. 34,  of the Indian Penal Code, for committing the murder of E. The   evidence is  directed to establish  that  the said four persons   have taken part in the murder.

(2) A, B, C and D and unnamed others are charged under the   said sections. But evidence is adduced to prove that the said   persons, along with others, named or unnamed, participated   jointly in the commission of that offence.

(3) A, B, C and D are charged under the said sections. But the   evidence is directed to prove that A, B, C and D, along with 3   others, have jointly committed the offence. xxx xxx xxx But what is the position if the Court acquits 3 of the 4 accused   either because it rejects the prosecution evidence or because   it gives the benefit of doubt to the said accused? Can it hold,  in the absence of a charge as well as evidence, that though   the  three  accused  are  acquitted,  some  other  unidentified   persons  acted  conjointly  along  with  one  of  the  named  persons? If the Court could do so, it would be making out a   new case for the prosecution: it would be deciding contrary to   the evidence adduced in the case. A Court cannot obviously   make out a case for the prosecution which is not disclosed   either in the charge or in regard to which there is no basis in   the evidence. There must be some foundation in the evidence   that persons other than those named have taken part in the  commission of the offence and if there is such a basis the case   will be covered by the third illustration.”

(underlined for emphasis)

14. The legal position was reviewed by a two-Judge Bench of this

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Court in Darbara Singh v. State of Punjab 2012 (8) SCALE 649.  

In that case also charges were framed against two of the accused  

persons under Section 302 IPC whereas against the third accused the  

charge framed was under Section 302 read with Section 34 IPC. The  

trial Court had acquitted the third accused but convicted the first two  

accused much in the same manner as is the position in the present  

case.  The contention before this Court was that in the absence of a  

charge under Section 34 no conviction could be recorded against the  

appellants under Section 302 especially when the injury inflicted by  

one  of  the  accused  persons  was  not  held  to  be  sufficient  in  the  

ordinary course of nature to cause death. Repelling the contention  

this Court observed:

“12. It has further been submitted on behalf of the Appellant   that,  as  the  appellant  was  never  charged  under   Section 302 r/w  Section 34 Indian  Penal  Code,  unless  it  is   established  that  the  injury  caused  by the  Appellant  on the   head  of  the  deceased,  was  sufficient  to  cause  death,  the   Appellant  ought  not  to  have  been  convicted  under   Section 302 Indian Penal Code simplicitor. The submission so   advanced is not worth consideration for the simple reason that   the  Learned  Counsel  for  the  Appellant  has  been  unable  to   show  what  prejudice,  if  any,  has  been  caused  to  the   Appellant, even if such charge has not been framed against   him. He was always fully aware of all the facts and he had, in   fact,  gone alongwith Kashmir Singh and Hira Singh with an   intention to kill the deceased. Both of them have undoubtedly   inflicted  injuries  on  the  deceased  Mukhtiar  Singh.  The   Appellant  has further been found guilty  of causing grievous   injury on the head of the deceased being a vital part of the   body. Therefore, in the light of the facts and circumstances of   the  said  case,  the  submission  so  advanced  does  not  merit   acceptance. xxx xxx xxx

14. The defect in framing of the charges must be so serious  

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that  it  cannot  be  covered  under  Sections 464/465  Code  of  Criminal Procedure., 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 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).

15.  The  '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  over  emphasized  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  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 jurisprudence, then the accused   can seek benefit under the orders of the Court.”

15. In  Gurpreet  Singh v.  State  of  Punjab  (2005) 12 SCC  

615, this  Court  held  that  no  prejudice  could  be  claimed  by  the  

accused merely because charge was framed under Section 302 IPC  

simpliciter and not with the help of Section 34 IPC.  The Court found  

that the eye witnesses had been cross-examined at length from all  

possible angles and from suggestions that were put to them to the

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eye witnesses, the Court was fully satisfied that there was no manner  

of  prejudice  caused.  What,  therefore,  needs  to  be  examined  is  

whether any prejudice was caused to the accused persons on account  

of absence of charge under Section 34 of the IPC.  Mere omission of  

Section 34 from the charge sheet does not ipso facto or ipso jure lead  

to any inference or presumption of prejudice having been caused to  

the accused in cases where the conviction is recorded with the help of  

that  provision.   It  is  only  if  the  accused  persons  plead  and  

satisfactorily  demonstrate  that  prejudice  had indeed resulted  from  

the omission of a charge under Section 34 of the IPC that any such  

omission may assume importance. We do not see any such prejudice  

having been caused in the present case.  In fairness to Mr. Ganesh  

we must mention that although he had strenuously argued the legal  

proposition dealt with by us above when it came to demonstrating a  

prejudice on account of absence of charge under Section 34 he was  

unable to do so. The absence of charge under Section 34 of the IPC  

did not, therefore, affect the legality of the conviction recorded by the  

High Court.

16. That brings us to third and the only other submission urged by  

Mr. Ganesh to the effect that there was no evidence to show common  

intention on the part of the appellants to commit the murder of the  

deceased.   We regret  our inability to accept that  submission. The

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evidence  on  record  sufficiently  proves  that  the  appellants  had  

confronted the deceased and PW-1 Alapati Seshadri on the previous  

date  which  was  defused  with  the  interference  of  PW-3  Sonti  

Koteswara  Rao,  a  shopkeeper  in  the  vicinity  who  was,  however,  

witness to the threat extended by the appellants to the deceased of  

dire consequences. There is evidence to show that on the date of  

occurrence the appellants were lying in wait near the Reading Room  

for  the  deceased.  No sooner  they saw him approaching the place  

where they were waiting that they went behind the Reading Room to  

fetch the stout sticks that they appear to have hidden from public  

view only to mount a surprise attack on the deceased.  This implies  

that the appellants had made preparations for the commission of the  

offence  and  the  incident  was  premeditated  as  a  sequel  to  the  

confrontation that the two parties had on the previous date. The last  

and by no means the least important circumstance is the nature of  

the injuries inflicted upon the deceased on the vital part of the body  

resulting in fracture of the skull, sufficient in the ordinary course to  

cause  death.  The  evidence  on  record  suggests  that  all  the  three  

accused persons belaboured the deceased and continued their assault  

and aggression even when the deceased had fallen to the ground on  

account of the head injuries sustained by him.  The appellants fled  

from the place of occurrence only when they felt that the deceased

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was dead. All these circumstances leave no manner of doubt that the  

appellants shared the common intention to kill the deceased and that  

they had acted under a premeditated plan. It is well settled that the  

common intention may develop during the course of the commission  

of the offence but the fact that the incident in instant case had a  

history behind it and that the appellants had not only threatened the  

deceased previously but were lying in wait for his arrival at the place  

of occurrence clearly showed that the commission of the offence was  

preconcerted.    

17. The High Court, therefore, committed no error in holding the  

appellants  guilty  especially  when  the  statement  of  PW-1  Alapati  

Seshadri  who  was  also  injured  in  the  incident  was  found  to  be  

credible.  The  depositions  of  PW-1  Alapati  Seshadri,  PW-2  Sonti  

Srinivasa Rao S/o Nageswara Rao, PW-3 Sonti Koteswara Rao, PW-4  

Sonti Srinivasa Rao S/o Veeraiah, PW-6 M.V. Gopala Krishna Murthy  

all  supported  the  prosecution  version  that  the  deceased  was  

assaulted by the appellants resulting in grievous injuries to him that  

culminated in his death. The trial Court had obviously fallen in error in  

rejecting the testimony of these witnesses on minor contradictions  

which was not  sufficient  to  shatter  their  credibility.   The  acquittal  

recorded by the trial Court was not thus a reasonably possible view in  

the matter which the High Court was entitled to reverse while hearing

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the appeal.   

18. In the result this appeal fails and is hereby dismissed.  

……………………………………….……….…..…J.         (T.S. Thakur)

     …………………………..…………………..…..…J.              (Gyan Sudha Misra)

New Delhi January 10, 2013