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.4 It 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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