PAL SINGH & ANR Vs STATE OF PUNJAB
Bench: B.S. CHAUHAN,A.K. SIKRI
Case number: Special Leave Petition (crl.) 191 of 2014
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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:
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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
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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
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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?
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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
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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,
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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
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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.
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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
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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
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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
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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.
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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
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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
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