Page 1

REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

SPECIAL LEAVE PETITION (CRL.)NO. 191 of 2014

Pal Singh & Anr.         …Appellants

Versus

State of Punjab                    …Respondent

O R D E R  

Dr. B.S. CHAUHAN, J.

1. This special leave petition has been filed against the judgment  

and order dated 4.7.2013 passed by the High Court  of  Punjab and  

Haryana at  Chandigarh in Criminal  Appeal  No. D-14-DB of 2005,  

maintaining the conviction and sentence of life imprisonment of the  

petitioners under Section 302 of Indian Penal Code, 1860 (hereinafter  

referred to as the ‘IPC’).  

2. Facts and circumstances giving rise to this petition are that:

Page 2

A. As  per  the  case  of  the  prosecution,  an  FIR  No.  69  dated  

14.4.2002 was lodged at 1.00 a.m. alleging that five accused persons  

including the present two petitioners committed the murder of Sarabjit  

Singh  @ Kala.  Thus,  on  the  basis  of  the  complaint  the  case  was  

registered under Sections 148, 302/149 IPC in P.S. Sadar, Phagwara,  

District Kapurthala.

B. In view thereof, the investigation ensued and after completion  

of the investigation, a charge sheet was filed against the five accused  

persons  including  the  present  two  petitioners  under  Sections  148,  

302/149  and  120-B IPC.  The  trial  was  concluded  and  the  learned  

Sessions Court convicted all the five accused persons including these  

two  petitioners  vide  judgment  and  order  dated  16.11.2004  for  the  

aforesaid  offences  and  awarded  different  sentences  including  life  

imprisonment under Section 302 IPC.  

C. Aggrieved,  all  the  five  accused  persons  preferred  Criminal  

Appeals  before the High Court.  Accused Pal Singh @ Amarjit Singh,  

appellant in Criminal Appeal No. D-14-DB of 2005 died during the  

pendency  of  the  appeals.  Thus,  his  appeal  stood  abated.  Accused  

Sarabjit Singh and Gurdev Singh @ Manga had been acquitted of the  

charges under Sections 148 and 302 r/w 149 IPC and the appeal of the  

2

Page 3

present petitioners had been dismissed, and therefore their conviction  

under Section 302 IPC and the sentences awarded by the trial court  

remained intact.  

Hence, this petition.  

3. Shri Pramod Swarup, learned senior counsel appearing for the  

petitioners has vehemently submitted that as one of the accused has  

died  and  two  have  been  acquitted  by  the  trial  court,  the  present  

petitioners had been convicted under Section 302 IPC simpliciter for  

which no charge had ever been framed. Therefore, the conviction of  

the petitioners deserves to be set aside. He has also taken us through  

the judgments of the trial court as well as of the High Court and the  

relevant evidence to show that none of the petitioners could be held  

exclusively  responsible  for  the  murder  of  Sarabjit  Singh  @  Kala.  

Thus, the petition deserves to be allowed.   

4. Both the courts below had considered the evidence on record  

and the relevant issue for us remains to consider the consequences of  

not framing the charge properly and none else.  

Initially, the charges had been framed by the trial court under  

Sections  302  r/w  34  IPC  and  Section  120-B  IPC  against  all  the  

3

Page 4

accused  persons.  Fresh  charges  were  subsequently  framed  under  

Sections 148, 302, 302/149 and 120-B IPC. Therefore, the ultimate  

situation remained that there was charge under Sections 302, 302/149  

and  120-B  IPC.  The  trial  court  has  convicted  the  present  two  

petitioners and sentenced them to undergo imprisonment for life and  

to pay a fine of Rs.2,000/- each.   In default  of payment of fine to  

undergo further  RI  for  one  month  each for  the offence  punishable  

under  Section 302 IPC. These  petitioners  also stood convicted and  

sentenced to undergo  RI for a period of two years each and fine of  

Rs.1000/- each and in default of payment of fine, to undergo further  

RI for a period of one month each for the offence punishable under  

Section 148 IPC.  However, they have been acquitted of the charge  

under  Section  120-B  IPC.   The  High  Court  has  affirmed  the  

conviction and sentence of the present petitioners under Section 302  

IPC, but set aside the conviction under Section 148 IPC. The ultimate  

result  remains  that  the  present  two petitioners  had  been  convicted  

under Section 302 IPC.  

5. Whether it is legally permissible in the facts and circumstances  

of the case to convict these two petitioners under Section 302 IPC  

simpliciter without altering the charges by the High Court?  

4

Page 5

In order to decide the limited issue it may be necessary for us to  

go into some detail to the factual matrix of the case.  

6. The post-mortem report revealed the following injuries on the  

person of the deceased:

1) Diffuse swelling 4 cm x 5 cm on the left temporo  

parietal  region.  Clotted  blood  was  present  in  both  the  

nostrils.  Underlying  skull  bones  were  fractured,  

laceration of the brain matter was present. Cranial cavity  

was full of blood.  

2) Diffuse swelling 6 cm x 6 cm on the top of head.  

Skull  bones  were  fractured.  Laceration of  brain matter  

was present. Cranial cavity was full of blood.  

3) Diffuse swelling 6 cm x 5 cm on the right side of  

the  fore-head.  Underlying  skull  bones  were  fractured.  

The cranial cavity was full of blood.  

4) Right eye was black. Underlying bone was normal.  

7. It is also on record that these two petitioners were having the  

iron rods while the other three accused named in the FIR were empty  

handed. The evidence on record had been that Pal Singh, petitioner  

no.1 raised an exhortation that Sarabjit Singh @ Kala be caught hold  

5

Page 6

and should not escape alive and gave two iron rod blows on his head.  

Manjinder  Singh,  petitioner  no.2  gave  two  iron  rod  blows  on  the  

person of Sarabjit Singh, out of which one hit his forehead and other  

his right cheek.  On hearing hue and cry, a large number of people  

gathered on the place of occurrence and all the five accused persons  

ran away. Version of the prosecution and the injuries found on the  

person of the deceased stood proved by the evidence of Gurdev Singh  

(PW.6) and Amandeep Singh (PW.11) as well as by the deposition of  

Dr. Daljit Singh Bains (PW.1), Senior Medical Officer, Civil Hospital,  

Phagwara. The ocular evidence of the eye-witnesses corroborates with  

the medical evidence. As there are concurrent findings in this regard  

we have not been invited to determine the said issue.  

 8. Shri Pramod Swarup, learned senior counsel has placed a heavy  

reliance on the judgment of this Court in  Nanak Chand v. State of  

Punjab, AIR 1955 SC 274, wherein it has been held that Section 149  

IPC creates a specific offence but Section 34 IPC does not, and they  

both  are  separate  and  distinguishable.  Section  149  IPC creates  an  

offence  punishable,  but  it  depends  on  the  offence  of  which  the  

offender is by that section made guilty. Therefore, for the appropriate  

punishment  section  must  be  read  with  it.  Section  34  does  not,  

6

Page 7

however, create any specific offence and there is a clear distinction  

between the provisions of Sections 34 and 149 IPC and the said two  

sections are not to be confused. The principal element in Section 34  

IPC is the common intention to commit a crime. In furtherance of the  

common  intention  several  acts  may  be  done  by  several  persons  

resulting in the commission of that crime.  In that situation, Section 34  

provides that each one of them would be liable for that crime in the  

same manner as if all the acts resulting in that crime had been done by  

him alone.  

9. In Suraj Pal v. State of Uttar Pradesh, AIR 1955 SC 419, this  

Court examined a case where the charge had been framed against the  

accused under Sections 147, 307/149 and 302/149 IPC, and there had  

been no direct and individual charge against any of the accused for  

specific offence under Sections 307 and 302 IPC, though the accused  

had been convicted under Sections 307 and 302 IPC. The court had  

set  aside  their  conviction  as  no  specific  charge  had  been  framed  

against any of the accused for which they had been convicted.  

10.  As there were doubts about the conflict/correctness of these  

two judgments, the matter was decided by a Constitution Bench in  

7

Page 8

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

116, and the court came to the following conclusions:  

“Sections  34,  114  and  149  of  the  Indian  Penal  Code   provide  for  criminal  liability  viewed  from  different   angles  as  regards  actual  participants,  accessories  and  men  actuated  by  a  common  object  or  a  common  intention; and the charge is a rolled-up one involving the   direct  liability  and  the  constructive  liability  without   specifying who are directly liable and who are sought to   be made constructively liable.  

In such a situation, the absence of a charge under   one or other of the various heads of criminal liability for   the offence cannot be said to be fatal by itself, and before   a  conviction  for  the  substantive  offence;  without  a   charge can be set aside, prejudice will have to be made   out.  In  most  of  the  cases  of  this  kind,  evidence  is   normally given from the outset as to who was primarily   responsible for the act which brought about the offence   and such evidence is of course relevant.

xx xx xx

This judgment should not be understood by the   subordinate  courts  as  sanctioning  a  deliberate   disobedience to the mandatory requirements of the Code,   or as giving any license to proceed with trials without an   appropriate charge. The omission to frame a charge is a   grave defect and should be vigilantly guarded against. In   some cases, it may be so serious that by itself it would   vitiate  a  trial  and  render  it  illegal,  prejudice  to  the   accused being taken for granted.

In the main, the provisions of section 535 would   apply to cases of inadvertence to frame a charge induced   by the belief  that  the matter  on record is  sufficient  to   warrant the conviction for a particular offence without   express specification, and where the facts proved by the   prosecution constitute a separate and distinct offence but   

8

Page 9

closely relevant to and springing out of the same set of   facts connected with the one charged.”

11. In Dhari & Ors. v. State of Uttar Pradesh, AIR 2013 SC 308,  

this Court re-considered the issue whether the appellants therein could  

be convicted under Sections 302 r/w 149 IPC, in the event that the  

High Court had convicted three persons among the accused and the  

number of  convicts has thus remained less  than 5 which is in fact  

necessary to form an unlawful assembly as described under Section  

141 IPC. This Court considered the earlier judgments in Amar Singh  

v. State of Punjab, AIR 1987 SC 826; Nagamalleswara Rao (K) v.  

State of A.P.,  AIR 1991 SC 1075,  Nethala Pothuraju v. State of  

A.P., AIR 1991 SC 2214; and Mohd. Ankoos v. Pubic Prosecutor,  

AIR 2010 SC 566, and came to the conclusion that in a case where the  

prosecution fails to  prove that the number of members of an unlawful  

assembly are 5 or more, the court can simply convict the guilty person  

with  the  aid  of  Section  34  IPC,  provided  that  there  is  adequate  

evidence  on  record  to  show  that  such  accused  shared  a  common  

intention to commit the crime in question.  (See also:  Jivan Lal v.  

State of M.P.,(1997) 9 SCC 119;  Hamlet v. State of Kerala, AIR  

9

Page 10

2003 SC 3682;  Fakhruddin v. State of M.P., AIR 1967 SC 1326;  

Gurpreet  Singh  v.  State  of  Punjab,  AIR  2006  SC  191;  and  S.  

Ganesan v. Rama Raghuraman & Ors., AIR 2013 SC 840).  

12. In Sanichar Sahni v. State of Bihar, AIR 2010 SC 3786, this  

Court considered the issue and held:

“Therefore, … unless the convict is able to establish that   defect in framing the charges has caused real prejudice   to him and that he was not informed as to what was the   real  case  against  him  and  that  he  could  not  defend   himself  properly,  no  interference  is  required  on  mere   technicalities. Conviction order in fact is to be tested on   the touchstone of prejudice theory.”

13. In Darbara Singh v. State of Punjab, AIR 2013 SC 840, this  

Court considered the similar issue and came to the conclusion that the  

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

the  charge  it  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:  

“The defect in framing of the charges must be so serious   that it cannot be covered under Sections 464/465 CrPC,   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   

10

Page 11

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).

“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  Ahmed  @ Rafi v.  State  of  U.P.,  AIR 2011  SC 3114;   Rattiram  v.  State  of  M.P.,  AIR  2012  SC  1485;  and   Bhimanna v. State of Karnataka, AIR 2012 SC 3026)”.

14. In  view  of  the  above,  we  do  not  find  any  force  in  the  

submissions advanced on behalf of the petitioners on this count.  

11

Page 12

15. Shri Pramod Swarup has also placed reliance on the judgment  

of this Court in  Dhaneswar Mahakud & Ors. v. State of Orissa,  

AIR 2006 SC 1727, wherein though the charge had been framed, this  

Court held that even if the accused has not been charged with the aid  

of Section 34 IPC and instead charged with the aid of Section 149  

IPC,  he  can  be  convicted  with  the  aid  of  Section  34  IPC  when  

evidence shows that there was common  intention to commit the crime  

and no prejudice or injustice has been caused to the accused therein.  

Even the conviction of the accused under Section 302 IPC simpliciter  

is  permissible  if  the  court  reaches  the  conclusion  on  the  basis  of  

material  placed before it  that injuries  caused by the accused were  

sufficient in the ordinary course of nature to cause death and nature of  

the injuries was homicidal.   

16. If the test laid down in this case is applied to the facts of the  

instant case both the petitioners can be convicted under Section 302  

IPC simpliciter  as  both  of  them could  be  convicted  under  Section  

302/34 IPC as both of them came fully armed with iron rods and both  

of them gave two blows each on the vital part of the body i.e. head  

and  forehead  which  proved  fatal  for  the  deceased.   More  so,  no  

question had been put to Dr. Daljit Singh Bains (PW.1) as to whether  

12

Page 13

the injuries caused by each of the petitioners was sufficient to cause  

death  independently.  It  is  not  a  fit  case  where  this  court  should  

examine the issue any further or grant any indulgence.  

The special leave petition is dismissed accordingly.  

…………………………….J. (Dr. B.S. CHAUHAN)

 ………………………………...J. (A.K. SIKRI)

New Delhi, February 25, 2014

13

Page 14

14