REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.656 OF 2005

Rafiq Ahmed @ Rafi … Appellant

Versus

State of U.P. … Respondent

J U D G M E N T

Swatanter Kumar, J.

1. Fine distinctions of law, if discerning, should normally be  

recognized and permitted to operate in their respective fields.  

With the development of criminal jurisprudence, the law has  

recognized the concept of cognate charges besides alternative  

charges.   The  differentiation  between the  offences  from the  

same  family  in  contradistinction  to  the  offences  falling  in  

different  categories  have  persuaded  the  courts  to  apply  the  

principle of ‘cognate offences’ and punish the offender of a less  

grave offence because the offence of  greater  gravity has not

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been proved beyond reasonable doubt.  This principle is to be  

applied keeping in view the facts and circumstances of a given  

case and notwithstanding the fact that no charge for such less  

grave offence had been framed against the offender.   In the  

case in hand, we are concerned with a similar question which  

arises from the following facts:

All  the  five  accused,  namely,  Rafiq  Ahmad,  Ahsan,  

Imamuddin, Arun Kumar and Yashwant Singh, according to  

the prosecution,  in the intervening night of  30th September,  

1977 and 1st October, 1977 committed dacoity in Ambassador  

Car No.UPS 7293 belonging to Rafiq Ahmad.  While the car  

was going on the pucca road from Nehtaur to Dhampur within  

the jurisdiction of thana Nehtaur, the accused had committed  

the murder of Jagdish Prasad @ Jagdish Chandra @ Jagdish  

Babu and thereafter thrown his body in a sugarcane field of  

one Ikrar Ahmad situated in Village Kashmiri, thana Nehtaur  

with the intention of screening themselves from punishment  

for committing any offence.  Shri Krishna Garg, uncle of the  

deceased  was carrying  on  the  wholesale  business  of  sugar,  

Khandsari,  flour,  food  grains  etc.  under  the  name  of  M/s.

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Badri  Prasad  Sunder  Lal  in  Mohalla  Bari  Mandi,  Dhampur  

(Bijnor).   This  firm  had  branches  in  the  name  of  ‘Garg  

Brothers’.  The firm used to sell the above products on credit  

to  the  customers  at  Dhampur,  Nagina,  Sherkot,  Sheohara,  

Haldaur and Nehtaur and the deceased, Jagdish Prasad, used  

to go to Nehtaur every Friday to realize money from them.  On  

Friday, 30th September, 1977, also he left for Nehtaur to collect  

money.  Ordinarily, he used to return home between 9.00 p.m.  

and  10.00  p.m.  with  collections  roughly  upto  `10,000/-.  

Though, Jagdish Prasad, on that day also had collected more  

than  `  8,000/-  from the  customers,  but  he  did  not  return  

home that night.  The next morning, Shri Krishna Garg sent  

his  Munim,  Ramesh  Chandra  to  Nehtaur  to  enquire  about  

Jagdish Prasad.  The Munim returned and disclosed to Shri  

Krishna Garg the above facts.  After arrival of the Munim, Shri  

Krishna Garg left Dhampur for Nehtaur along with Pyare Lal,  

Surendra Kumar, Har Kishan and Kamlesh to enquire about  

Jagdish Prasad.  From the enquiries, it came to light that at  

about 8.00 p.m., the deceased Jagdish Prasad had occupied a  

taxi, in which some persons were already sitting, at the Agency

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Chauraha,  Nehtaur.   The  matter  was  reported  and  after  

making an entry in the GD on 1st October, 1977 at 2.30 p.m.,  

SI K.L. Verma started investigation and interrogated a number  

of  persons  including  Shri  Krishna  Garg  and  Pyare  Lal.  

Thereafter,  a  case  was  registered under  Section  364 of  the  

Indian Penal Code (IPC).  On 2.10.1977, the investigation was  

taken up by Station Officer (S.O.) Raj Pal Yadav and both Mr.  

Verma  and  Mr.  Yadav  left  the  police  station  together  for  

investigation and reached P.S. Dhampur.  At about 9.00 pm,  

accused Rafiq Ahmad was arrested by the police along with his  

taxi No.UPS 7293.  His arrest led to recovery of the taxi which  

was  made  in  presence  of  Pyare  Lal  and  Surendra  Kumar.  

During  the  course  of  the  investigation,  the  accused  Rafiq  

Ahmad  also  made  a  confessional  statement  before  the  

investigating officer in presence of Surendra Kumar and Pyare  

Lal  that  the  dead  body  of  the  deceased  was  lying  in  the  

sugarcane  fields  near  village  Kashmiri.   The  body  of  the  

deceased was, thus, recovered and identified by Pyare Lal.   SI  

K.L Verma (PW9)  prepared the inquest  report  and the body  

was subjected to post mortem by Dr. R.B. Saxena (PW8), the

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Medical Officer.

On 3rd October, 1977, the accused Ahsan and his brother  

Imamuddin were arrested with the help of Zamal Ahmad @  

Khan Zamaloo and Sattar.  A gold ring was recovered from the  

possession  of  Ahsan.   These  arrests  were  effected  at  about  

9.00 pm.  Similarly, the accused Yashwant Singh was arrested  

by  the  police  from the  railway  platform at  1.00  am on  2nd  

October, 1977.  

We may refer to the post-mortem report and the ante-

mortem injuries found by Dr. Saxena (PW8) on the body of the  

deceased which are as follows :

“1. Incised wound with chopping of left  ear vertically oblique with ½ part of  ear missing.

2. Incised  wound  oblique  from  above  down wards below left side angle of  jaw to upper neck 1/1/4”X¾”X¼”.

3. Incised wound 6”X1”X bone deep at  front  of  neck  just  above  Adam’s  cartilage.

4. Abrasion ¼” X ¼” on back of both  shoulders.

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5. Abrasion 1/8” X ¼” on back of right  elbow joint.

6. Abrasion ¼” X ¼” on outer side and  back of left elbow.

In the opinion of Dr. Saxena, death  was  caused  on  account  of  respiratory  failure  and  hemorrhage  resulting from severing of trachea.”

The investigation was completed and the charge-sheet in  

accordance with the provisions of Section 173 of the Criminal  

Procedure Code (for short ‘Cr.P.C.’) was filed before the court  

of competent jurisdiction.  The accused were committed to the  

Court of Sessions and tried in accordance with law.

The learned Trial Court having considered the material  

and the report submitted to it in terms of Section 173 of the  

Cr.P.C. and vide order dated 11th September, 1979 framed the  

following charge against all the accused, including the present  

appellant, Rafiq Ahmad:

“ S.T. No.3/78   State  VS.  Rafiq Etc.

Charge I Jawant singh III additionaL Sessions Judge,  Bijnour  hereby  charge  you  Rafiq,  Ahsan,  Imamuddin, Arun Kumar and Yashwant Singh  accused as follows: -

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That  you in  the  night  of  30-9-77  committed  dacoity  in  Taxi  No.  UPS  7273  while  it  was  running on Nehtaur to Dhampur road and that  in the commission of said dacoity murder was  committed by you of one jagdish prashad and  that  you  thereby  committed  an  offence  punishable  u/s  396  IPC  and  within  my  cognizance  And  I  hereby  direct  that  you  be  tried by me on the said charge. Dt.11-9-79 Sd/-  Judge

Charge read over and explained in Hindi to the  accused who pleaded not guilty.

Sd/-  Judge

Sd/- Rafiq, Sd/- Ahsan, Sd/- Imamuddin,  Sd/- Arun Kumar Sd/- Yashwant Singh”

This  charge  came to  be  amended by  the  learned  Trial  

Court and the amended charge read as under:

“ S.T. No. 3/78 State   VS.  Rafiq Etc.

Amended Charge

I Jaswant singh III additional Sessions Judge,  Bijnour  hereby  charge  you  Rafiq,  Ahsan,  Imamuddin, Arun Kumar and Yashwant Singh  accused as follows: -

Firstly that you along with one another during  the night  of  30-9-77 and 1-10-77 committed  dacoity  in  Ambassador  Car  No.  UPS  7293

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belonging to rafiq accused while it was going  from Nehtaur to Dhampur on the pucca road  within  the  circle  of  P.S.  Nahtaur  District  Bijnaur and that in the commission of the said  dacoity,  murder  of  jagdish  prashad  was  committed  by  you  and  that  you  thereby  committed  an  offence  punishable  under  Section 396 IPC and within the cognizance of  this court.

Secondly  –  that  you  along  with  one  another  during the night of 30-09-77 and 1-10-77 in  the area of village Kashmiri P.S. Nehtaur Dist.  Bijnore  knowing  or  having  reason  to  believe  that an offence U/s 396 IPC punishable with  death  or  imprisonment  for  life  has  been  committed  did  cause  evidence  of  the  said  offence  to  disappear  by  secreting  the  dead  body of jagdish prashad in the sugar cane field  of Ikrar Ahmad with the intention of screening  yourself  from  legal  punishment  and  thereby  committed an offence punishable u/s 201 IPC  and with the cognizance of this court.

And I hereby direct that you be tried by this  court on the said charge

25-2-80 Sd/- Judge

Charge read over and explained in Hindi to the  accused who pleaded not guilty.

Sd/- Judge

Sd/- Rafiq, Sd/- Ahsan,

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Sd/- Imamuddin,  Sd/- Arun Kumar Sd/- Yashwant Singh”

The prosecution examined as many as 12 witnesses to  

prove  its  case.   Besides  the  statement  of  these  witnesses,  

prosecution had also placed reliance on Exhibits Ka-1 to Ka-

23.  Incriminating evidence against the accused which came  

on record during the course of the trial was put to the accused  

whose  statement  under  Section  313  of  the  Cr.P.C.  was  

recorded  by  the  Court  on  20th February,  1981.   It  may  be  

stated here that in his statement, accused Rafiq Ahmad denied  

his presence at the place of occurrence and stated that the  

witnesses being the relatives of  the deceased were deposing  

against the appellant.  The accused had also led defence and  

examined two witnesses, namely, Naik Singh (DW1) and Shri  

J.P. Singh (DW2) and placed number of documents on record.  

The  Trial  Court,  by  a  detailed  judgment  dated  17th  

August, 1981, came to the conclusion that Rafiq Ahmad was  

guilty of charge under Sections 302 and 201 IPC under which  

the accused was liable for conviction and punishment.  The

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Court further held that Ahsan was guilty of a charge under  

Section  411  IPC  but  acquitted  him  and  the  three  other  

accused,  namely,  Imamuddin,  Arun  Kumar  and  Yashwant  

Singh under Section 396 IPC by giving them benefit of doubt.  

The  Court  awarded  rigorous  imprisonment  for  life  to  Rafiq  

Ahmad  under  Section  302  IPC  and  seven  years  rigorous  

imprisonment  under  Section  201  IPC.   Both  the  sentences  

were ordered to run concurrently.   The Trial Court ordered  

the accused Ahsan to undergo rigorous imprisonment for  a  

period of one year and to pay a fine of Rs.500/- under Section  

411, IPC and in default to undergo imprisonment for further  

period of six months.

Accused Rafiq Ahmad, dissatisfied with the judgment of  

the  Trial  Court,  preferred an appeal  before  the  High Court.  

Ahsan  also  challenged  his  conviction  and  sentence.   Both  

these appeals were heard and disposed of by the High Court  

by a common judgment.  The appeal filed by Rafiq Ahmad was  

dismissed.  His conviction and sentence was maintained while  

the  appeal  preferred  by  Ahsan  was  accepted  and  he  was  

acquitted even of the charge under Section 411 IPC.

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Rafiq Ahmad, in the present appeal, has impugned the  

judgment of the High Court.

2. The entire emphasis of the submissions made on behalf  

of  the  appellant  is  primarily  founded on determination of  a  

question of law, which, if answered in favour of the appellant,  

according to the learned counsel appearing for the appellant,  

would  entitle  the  appellant  to  an  order  of  acquittal.   The  

argument  is  that  the  appellant  was  charged  for  an  offence  

under Section 396 IPC and without reformulation/alteration of  

the charge,  the appellant has been convicted for  an offence  

under Section 302 IPC.  This according to the learned counsel,  

has deprived the appellant of a fair opportunity of defence and  

has caused him serious prejudice.  Section 302 IPC is a graver  

offence than an offence punishable under Section 396 of the  

IPC and as such the entire trial and conviction of the appellant  

is vitiated in law.   

3. It is also contended that the learned trial court as well as  

the High Court have erred in fact and in law, have failed to  

appreciate the evidence in its correct perspective and also that

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there are serious contradictions between the statements of the  

witnesses.   It  is  also  urged  that  this  being  a  case  of  

circumstantial  evidence,  the prosecution has failed to prove  

the chain of events, pointing towards the guilt of the accused.  

Therefore, the judgments of the courts below are liable to be  

set aside.

4. On the contra, it is contended on behalf of the State that  

despite  the  present  case  being  a  case  of  circumstantial  

evidence, the prosecution has been able to establish its case  

beyond any reasonable doubt.  The appellant has suffered no  

prejudice, whatsoever, because of his conviction under Section  

302 of the IPC.   

5. Before we proceed to examine the merit or otherwise of  

the above rival contentions, it will be important for us to refer  

to the relevant provisions of the IPC at this stage itself.  The  

relevant provisions read as under:-

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

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396. Dacoity with murder.-If any one of five  or  more  persons,  who  are  conjointly  committing  dacoity,  commits  murder  in  so  committing dacoity, every one of those persons  shall be punished with death, or imprisonment  for  life,  or  rigorous imprisonment  for  a  term  which may extend to ten years, and shall also  be liable to fine.”

6. As  is  evident  from  the  amended  charge  reproduced  

earlier,  the  appellant  was  charged  with  an  offence  under  

Sections 396 and 201 of the IPC.  It is not necessary for us to  

examine the charge framed against the other co-accused as all  

of them have been acquitted and the judgment of acquittal has  

not been challenged before this Court.

7. Section 391 IPC explains the offence of ‘dacoity’.  When  

five or more persons conjointly commit or attempt to commit a  

robbery,  or  where  the  whole  number  of  persons  conjointly  

committing or attempting to commit a robbery, and persons  

present and aiding such commission and attempt amount to  

five or more, every person so committing, attempting or aiding,  

is said to commit ‘dacoity’.  Under Section 392 IPC, the offence  

of  ‘robbery’  simplicitor  is  punishable  with  rigorous  

imprisonment  which  may  extend  to  ten  years  or  14  years

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depending upon the facts of a given case.  Section 396 IPC  

brings  within  its  ambit  a  murder  committed  along  with  

‘dacoity’. In terms of this provision, if any one of the five or  

more persons, who are conjointly committing dacoity, commits  

murder in so committing dacoity, every one of those persons  

shall  be  punished  with  death  or  imprisonment  for  life  or  

rigorous imprisonment for  a term which may extend to ten  

years and shall also be liable to fine.

8. On a plain reading of these provisions, it is clear that to  

constitute an offence of ‘dacoity’, robbery essentially should be  

committed by five or more persons.  Similarly, to constitute an  

offence of ‘dacoity with murder’ any one of the five or more  

persons  should  commit  a  murder  while  committing  the  

dacoity,  then  every  one  of  such  persons  so  committing,  

attempting to commit  or aiding,  by fiction of  law,  would be  

deemed to have committed the offence of murder and be liable  

for  punishment  provided  under  these  provisions  depending  

upon the facts and circumstances of the case.  

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9. Section 299 defines ‘culpable homicide’.  Whoever causes  

death by doing an act with the intention of causing death, or  

with the intention of causing such bodily injury as is likely to  

cause death, or with the knowledge that he is likely by such  

act to cause death, commits the offence of culpable homicide.  

Except  the  exceptions  provided  under  Section  300  IPC,  

culpable  homicide  is  murder  if  the  act  by  which  death  is  

caused  is  done  with  the  intention  of  causing  death.   The  

intention to cause death is the primary distinguishing feature  

between  these  two  offences.   It  is  a  fine  but  clear  line  of  

distinction.   

10. In terms of Section 300 IPC, except in the cases stated in  

that provision, culpable homicide is murder if the act by which  

the death is caused is done with the intention of causing death  

or  in  terms  of  any  of  the  circumstances  stated  secondly,  

thirdly  and  fourthly  respectively.   The  law  clearly  marks  a  

distinction between culpable homicide amounting to murder  

and  culpable  homicide  not  amounting  to  murder.   Another  

distinction between Sections 302 and 396 is that under the  

latter,  wide  discretion  is  vested  in  the  courts  in  relation

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awarding  of  punishment.   The  court,  in  exercise  of  its  

jurisdiction  and  judicial  discretion  in  consonance  with  the  

established principles of law can award sentence of ten years  

with  fine  or  even  award  sentence  of   life  imprisonment  or  

sentence of  death, as the case may be while  under Section  

302, the court cannot, in its discretion, award sentence lesser  

than life imprisonment.

11. The ingredients of both these offences, to some extent,  

are  also  different  inasmuch  as  to  complete  an  offence  of  

‘dacoity’  under  Section 396 IPC, five or  more persons must  

conjointly commit the robbery while under Section 302 of the  

IPC even one  person by  himself  can commit  the  offence  of  

murder.  But, as already noticed, to attract the provisions of  

Section  396,  the  offence  of  ‘dacoity’  must  be  coupled  with  

murder.   In  other  words,  the  ingredients  of  Section  302  

become  an  integral  part  of  the  offences  punishable  under  

Section  396  of  the  IPC.   Resultantly,  the  distinction  with  

regard to the number of persons involved in the commission of  

the  crime  loses  its  significance   as  it  is  possible  that  the  

offence of ‘dacoity’ may not be proved but still the offence of

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murder could be established, like in the present case.  Upon  

reasonable analysis of the language of these provisions, it is  

clear that the Court has to keep in mind the ingredients which  

shall constitute a criminal offence within the meaning of the  

penal section.  This is not only essential  in the case of the  

offence  charged  with  but  even  where  there  is  comparative  

study of different penal provisions as the accused may have  

committed more than one offence or even offences of a graver  

nature.  He may finally be punished for a lesser offence or vice  

versa, if the law so permits and the requisite ingredients are  

satisfied.

12. So  far  the  judicial  pronouncements  show a  consistent  

trend  that  wherever  an  accused  is  charged  with  a  grave  

offence, he can be punished for a less grave offence finally, if  

the  grave  offence  is  not  proved.   For  example,  a  person  

charged with an offence under  Section 302 of  the IPC may  

finally be convicted only for an offence under Section 304 Part  

II  where  the  prescribed  punishment  is  lesser  and  the  

consequences of conviction are less serious in comparison to a  

conviction under Section 302.  But even in those cases, the

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Court  has  to  be  cautious  while  examining  whether  the  

ingredients of the offences are independently satisfied.  If the  

ingredients even of a lesser offence are not satisfied then it  

may be difficult in a given case for the court to convict the  

person for an offence of a less grave nature.   There can be  

cases where it may not be possible at all to punish a person of  

a less grave offence if its ingredients are completely different  

and distinct from the grave offence.  To deal with this aspect  

illustratively, one could say that a person who is charged with  

an offence under Section 326 may not be liable to be convicted  

for an offence under Section 406 IPC because their ingredients  

are entirely distinct, different and have to be established by  

the  prosecution  on  its  own  strength.   In  other  words,  the  

accused has to be charged with a grave offence which would  

take within its ambit and scope the ingredients of a less grave  

offence.   The  evidence  led  by  the  prosecution  for  a  grave  

offence, thus, would cover an offence of a less grave nature.  

But  it  is  essential  that  the  offence  for  which  the  Court  

proposes  to  punish  the  accused,  is  established  beyond  

reasonable doubt by the prosecution.

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13. A Constitution Bench of this Court in the case of  Willie  

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

116] dealt with a question as to whether omission to frame a  

charge was a curable irregularity.  In that case the accused  

was  charged  for  committing  an  offence  punishable  under  

Section  302  IPC but  the  Court  finally  convicted  him of  an  

offence  punishable  under  Section  304,  Part  II.   The  Court,  

while  examining  if  the  accused  had been prejudiced  in  his  

defence and the validity of his conviction, held as under:

“6.  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 line 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

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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.

7.  Now here,  as  in  all  procedural  laws,  certain  things  are  regarded  as  vital.  Disregard of a provision of that nature is  fatal to the trial and at once invalidates  the conviction.  Others are not vital  and  whatever  the  irregularity  they  can  be  cured;  and in  that  event  the  conviction  must stand unless the Court is satisfied  that there was prejudice.  Some of these  matters are dealt with by the Code and  wherever that is the case full effect must  be given to  its  provisions.  The question  here  is,  does  the  Code  deal  with  the  absence of a charge and irregularities in  it,  and  if  so,  into  which  of  the  two  categories does it place them ? But before  looking  into  the  Code,  we  deem  it  desirable to refer to certain decisions of  the  Privy  Council  because  much  of  the  judicial thinking in this country has been  moulded  by  their  observations.  In  our  opinion,  the  general  effect  of  those  decisions can be summarised as follows.

XXX XXX XXX

17.  It is possible (though we need not so  decide  in  this  case)  that  the  recent  amendment to section 537 in the Code of  Criminal  Procedure  (Amendment)  Act  XXVI  of  1955,  where  mis-joinder  of

21

charges has been placed in the curable  category, will set at rest the controversy  that has raged around the true meaning  of N. A. Subramania Iyer v.  King-Emperor.  In any case, our opinion is that the real  object  of  the  Code  is  to  leave  these  matters to the discretion and vigilance of  the courts. Slightly to alter the language  of  the  Privy  Council  in  Babulal  Choukhani  v.  The  King-Emperor  [1938]  L.R. 65 IndAp 158, we would say -  

"It  must  be  hoped,  and  indeed  assumed,  that  magistrates  and  judges will exercise their jurisdiction  fairly  and  honestly.  Such  is  the  implied condition of the exercise of  judicial power. It they do not, or if  they go wrong in fact or in law, the  accused has prima facie  a  right  of  recourse  to  the  superior  courts  by  way of  appeal  or  revision;  and the  cases  show  how  vigilant  and  resolute  the  High  Courts  are  in  seeing  that  the  accused  is  not  prejudiced  or  embarrassed  by  unsubstantial  departures  from  the  Code and how closely and jealously  the  Supreme  Court  guards  the  position  of  the  accused.  These  safeguards may well have appeared  to  the  Legislature  to  be  sufficient  when  they  enacted  the  remedial  provisions of the Code and have now  left them substantially unaltered in  the new Code recently introduced".  

This,  we  feel,  is  the  true  intent  and  purpose  of  section  537(a)  which  covers  every proceeding taken with jurisdiction

22

in  the  general  phrase  "or  other  proceedings under this Code". It is for the  Court  in  all  these  cases  to  determine  whether there has been prejudice to the  accused; and in doing so to bear in mind  that  some  violations  are  so  obviously  opposed to natural  justice and the  true  intendment of the Code that on the face  of  them and without anything else they  must  be  struck  down,  while  in  other  cases  a  close  examination  of  all  the  circumstances will be called for in order  to discover whether the accused has been  prejudiced.

XXX XXX XXX

In adjudging the question of prejudice the  fact  that  the  absence  of  a  charge,  or  a  substantial  mistake  in  it,  is  a  serious  lacuna  will  naturally  operate  to  the  benefit of the accused and if there is any  reasonable and substantial  doubt about  whether he was, or was reasonably likely  to  have  been,  misled  in  the  circumstances of any particular case, he  is  as  much entitled  to  the  benefit  of  it  here  as  elsewhere;  but  if,  on  a  careful  consideration  of  all  the  facts,  prejudice,  or  a  reasonable  and  substantial  likelihood  of  it,  is  not  disclosed  the  conviction must stand; also it will always  be material to consider whether objection  to  the  nature  of  the  charge,  or  a  total  want of one, was taken at an early stage.  

If it was not, and particularly where  the accused is defended by ‘AIR 1930 PC  57 (2) at p.58 (G)’, it may in a given case  be proper  to conclude that  the  accused

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was satisfied and knew just what he was  being tried for and knew what was being  alleged  against  him  and  wanted  no  further particulars, provided it is always  borne in mind that "no serious defect in  the  mode of  conducting a  criminal  trial  can be justified or cured by the consent  of the advocate of the accused" ‘AIR 1927  PC 44 at pp.46-47 & 49 (F)’.

But these are matters of fact which  ill be special to each different case and no  conclusion on these questions of fact in  any one case can ever be regarded as a  precedent or a guide for a conclusion of  fact  in  another,  because  the  facts  can  never be alike in any two cases however  alike  they  may  seem.  There  is  no  such  thing  as  a  judicial  precedent  on  facts  though  counsel,  and  even  judges,  are  sometimes prone to  argue and to  act  if  there were.”

14. The Court, while laying down the above law, significantly  

noticed  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 with  certain  

well-established  and  well-understood  canons  of  law  that  

accord with the notions of natural justice.

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15. In the case of  Iman Ali & Anr.  v.  State of Assam, [AIR  

1968 SC 1464],  the  Court  had the  occasion to  explain  the  

distinction between the scope, liability and punishment for an  

offence  under  Section  396,  as  opposed to  Section 302 IPC.  

The Court noticed that the offence under Section 396 was no  

less heinous than an offence under Section 302 though in the  

latter case, it was obligatory on the part of the Court to record  

reasons for  not  awarding death sentence.   The Court  while  

sustaining the enhancement of punishment from sentence of  

life imprisonment to sentence of death by the High Court on  

the ground that there was a direct evidence to show that the  

accused had committed the alleged murder, held as under:

“Learned  counsel  for  the  appellants,  in  challenging the justification for the order  of enhancement of sentence by the High  Court,  relied on the principle laid down  by this  court  in  Dalip  Singh v.  State  of   Punjab,  1954  SCR  145  at  p.156  =  (AIR  1953 SC 364 at pp. 367-368) which was  explained in the following words:-

“In  a  case  of  murder,  the  death  sentence  should  ordinarily  be  imposed unless the trying Judge for  reasons  which  should  normally  be  recorded  considers  it  proper  to  award  the  lesser  penalty.  But  the

25

discretion  is  his  and  if  he  gives  reasons  on  which  a  judicial  mind  could  properly  be  found,  an  appellate court should not interfere.  The  power  to  enhance  a  sentence  from transportation to death should  very rarely be exercised and only for  the strongest possible reasons. It is  not enough for an appellate court to  say, or think, that if left to itself it  would  have  awarded  the  greater  penalty because the discretion does  not belong to the appellate court but  to  the  trial  Judge  and  the  only  ground on which an appellate court  can interfere  is  that  the  discretion  has  been  improperly  exercised,  as  for  example,  where  no reasons are  given and none can be inferred from  the  circumstances  of  the  case,  or  where the facts are so gross that no  normal  judicial  mind  would  have  awarded the lesser penalty.”

It  appears  to  us,  however,  that,  in  the  present  case,  this  principle  is  of  no  assistance  to  the  appellants  for  challenging  the  step  taken  by  the  High  Court. This court cautioned the appellate  court against interfering if the discretion  of  the  trying  Judge  is  exercised  for  reasons recorded by him and if it appears  from the reasons that he had exercised a  judicial  mind  in  not  awarding  the  sentence of death. In the present case, as  mentioned by the High Court  and as is  apparent from the judgment of the Court  of  Session,  the  trial  court  awarded  the  sentence of imprisonment for life without

26

giving any reasons at all for adopting that  course. It is true that the appellants were  not convicted in the present case for the  offence  of  murder  simpliciter  under  Section 302 IPC; but that, in our opinion,  is  immaterial.  The  conviction  of  the  appellants  under  section  396  IPC,  was  not  based  on  constructive  liability  as  members  of  the  gang  of  dacoits.  There  was clear finding by the court of Session  which has been upheld by the High Court  that each of these appellants committed a  cold-blooded  murder  by  shooting  two  inmates  of  the  house  simply  with  the  object  of  facilitating  commission  of  dacoity by them. Those persons were shot  and killed even though they had not even  tried  to  put  up  any  resistance.  The  offence  under  Section  396  IPC,  was  therefore, no less heinous than an offence  under  Section  302  IPC.  In  these  circumstances, when the court of Session  gave no reason at all for not awarding the  sentence  of  death  and  for  sentencing  them  to  imprisonment  for  life  only,  it  cannot be held that the High Court was  not justified in interfering with that order.

Learned counsel  in this connection  refereed  us  to  a  decision  of  a  Division  Bench of the Allahabad High Court in Lal  Singh v. Emperor A.I.R. 1938 Alld. 625,  where it was held :  

"We  do  not  consider  that  as  a  general  rule  a  sentence  of  death  should  necessarily  follow  a  conviction under s. 396, I.P.C., and  this  Section  differs  from  s.  302,  I.P.C.,  in  that  respect.  The  rule  is

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body,  offences  against  property  and  offences  relating  to  

cheating, misappropriation, forgery etc.  In the normal course  

of events, the question of grave and less grave offences would  

arise in relation to the offences falling in the same class and  

normally may not be inter se the classes.  It is expected of the  

prosecution to collect all evidence in accordance with law to  

ensure  that  the  prosecution is  able  to  establish  the  charge  

with which the accused is charged, beyond reasonable doubt.  

It  is  only  in  those  cases,  keeping  in  view  the  facts  and  

circumstances of a given case and if the court is of the view  

that the grave offence has not been established on merits or  

for a default of technical nature, it may still proceed to punish  

the accused for an offence of a less grave nature and content.

18. In  the  case  of  Anil  @  Raju  Namdev  Patil  vs.   

Administration of Daman & Diu and Anr. [2006 Suppl. (9) SCR  

466],  the  Court  had  to  deal  with  a  situation  where  the  

accused, a car driver had kidnapped a child of five years for  

the purpose of demanding ransom and later killed the child.  

The  accused  had  been  charged  for  an  offence  punishable  

under  Sections  364,  302  and  201  IPC,  but  was  finally

29

convicted for an offence punishable under Section 364-A and  

was awarded sentence of death.  This Court held that there  

was prejudice caused to the appellant and the sentence was  

modified  from  death  to  rigorous  imprisonment  for  life  with  

conviction  under  Section  364  IPC.   The  Court,  besides  

recording the above findings on the merits of the case noticed  

the  precedents  in  relation  to  non-framing  of  charge.   The  

Bench referred to various judgments of this Court in K. Prema  

S. Rao and Anr.  v. Yadla Srinivasa Rao and Ors. [(2003) 1 SCC  

217], Kammari Brahmaiah and Ors.  v.  Public Prosecutor, High  

Court of A.P.  [(1999) 2 SCC 522], Dalbir Singh v. State of U.P.   

[(2004 5 SCC 334],  Kamalanantha and Ors.  v.  State  of  T.N.  

[(2005 5 SCC 194],  Harjit  Singh v.  State  of Punjab [(2006 1  

SCC 463]  and  recapitulated  the  principles  of  law  stated  in  

these  judgments  and  stated  the  following  precepts  of  law  

which would govern such cases:

“The  propositions  of  law  which  can  be  culled  out  from  the  aforementioned  judgments are:

(i)  The  appellant  should  not  suffer any prejudice by reason  of misjoinder of charges.

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(ii) A conviction for  lesser  offence  is permissible.

(iii) It should not result in failure of  justice.

(iv) If  there  is  a  substantial  compliance,  misjoinder  of  charges  may not  be fatal  and  such  misjoinder  must  be  arising out of mere misjoinder  to frame charges.

The ingredients for commission of offence  of  Section  364 and 364-A are  different.  Whereas the intention to kidnap in order  that he may be murdered or may be so  disposed  of  as  to  be  put  in  danger  as  murder  satisfied  the  requirements  of  Section 364 of the Indian Penal Code, for  obtaining a conviction for commission of  an offence under Section 364-A thereof it  is necessary to prove that not only such  kidnapping or abetment has taken place  but thereafter the accused threatened to  cause death or hurt to such person or by  his  conduct  gives  rise  to  a  reasonable  apprehension  that  such  person may  be  put  to death or  hurt  or  causes hurt  or  death to such person in order to compel  the government or any other person to do  or abstain from doing any act or to pay a  ransom.

It was, thus, obligatory on the part  of the learned Sessions Judge, Daman, to  frame a charge which would answer the  description  of  the  offence  envisaged  under Section 364-A of the Indian Penal  Code.  It may be true that the kidnapping

31

was done with a view to get ransom but  the  same  should  have  been  put  to  the  appellant  while  framing  a  charge.   The  prejudice to the appellant is apparent as  the  ingredients  of  a  higher  offence  had  not  been put to  him while  framing  any  charge.

It  is  not  a  case  unlike  Kammari   Brahmaiah (supra) where the offence was  of a lesser gravity, as has been observed  by Shah, J.”

19. In light of the above principles, let us now examine the  

meaning of  ‘prejudice’.   The expression has been defined in  

Black’s Law Dictionary (Eighth Edition), as follows:

“prejudice,  1.  Damage or detriment  to  one’s  legal  rights  or  claims.   See  dismissal  with  prejudice,  dismissal   without prejudice under DISMISSAL.

Legal  prejudice. A  condition  that,  if  shown  by  a  party,  will  usu.  defeat  the  opposing party’s action: esp. a condition  that,  if  shown  by  the  defendant,  will  defeat  a  plaintiff’s  motion  to  dismiss  a  case  without  prejudice.   The  defendant  may show that dismissal will deprive the  defendant of a substantive property right  or preclude the defendant from raising a  defense  that  will  be  unavailable  or  endangered in a second suit.

Undue  prejudice.  The  harm  resulting  from  a  fact-trier’s  being  exposed  to

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evidence  that  is  persuasive  but  inadmissible  (such  as  evidence  of  prior  criminal conduct) or that so arouses the  emotions that calm and logical reasoning  is abandoned.

2. A  preconceived  judgment  formed  without a factual basis; a strong bias”

20. When we speak of prejudice to an accused, it has to  

be  shown that  the  accused  has  suffered  some disability  or  

detriment in the protections available to him under the Indian  

criminal jurisprudence.  It is also a settled canon of criminal  

law  that  this  has  occasioned  the  accused  with  failure  of  

justice.  One of the other cardinal principles of criminal justice  

administration  is  that  the  courts  should  make  a  close  

examination to ascertain whether there was really a failure of  

justice or whether it is only a camouflage, as this expression is  

perhaps  too  pliable.   With  the  development  of  law,  Indian  

courts have accepted the following protections to and rights of  

the accused during investigation and trial :

(a) The  accused  has  the  freedom  to  maintain  silence  

during investigation as well as before the Court.  The  

accused  may  choose  to  maintain  silence  or  make

33

complete denial even when his statement under Section  

313  of  the  Code  of  Criminal  Procedure  is  being  

recorded, of course, the Court would be entitled to draw  

inference,  including  adverse  inference,  as  may  be  

permissible to it in accordance with law;

(b) Right to fair trial

(c) Presumption of innocence (not guilty)

(d) Prosecution  must  prove  its  case  beyond  reasonable  doubt.

21. Prejudice to an accused or failure of justice, thus, has to  

be  examined  with  reference  to  these  aspects.   That  alone,  

probably,  is  the method to determine with some element of  

certainty  and  discernment  whether  there  has  been  actual  

failure of justice.  ‘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  matters  falling  beyond their  scope.   Once  the  

accused  is  able  to  show  that  there  is  serious  prejudice  to  

either of  these aspects and that the same has defeated the

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rights available to him under the criminal jurisprudence, then  

the accused can seek benefit under the orders of the Court.

22. Right  to  fair  trial,  presumption  of  innocence  until  

pronouncement of guilt and the standards of proof,  i.e., the  

prosecution must prove its case beyond reasonable doubt are  

the  basic  and  crucial  tenets  of  our  criminal  jurisprudence.  

The Courts are required to examine both the contents of the  

allegation of prejudice as well as its extent in relation to these  

aspects of the case of the accused.  It will neither be possible  

nor appropriate to state such principle with exactitude as it  

will always depend on the facts and circumstances of a given  

case.   Therefore,  the  Court  has to  ensure  that  the  ends of  

justice  are  met  as  that  alone  is  the  goal  of  criminal  

adjudication.  Thus, wherever a plea of prejudice is raised by  

the accused, it must be examined with reference to the above  

rights  and safeguards,  as  it  is  the  violation  of  these  rights  

alone  that  may  result  in  weakening  of  the  case  of  the  

prosecution  and  benefit  to  the  accused  in  accordance  with  

law.

35

During  conduct  of  trial,  framing  of  a  charge  is  an  

important  function  of  the  court.   Sections  211  to  224  of  

Chapter XVII of  the Code of Criminal  Procedure, 1973 have  

been  devoted  by  the  Legislature  to  the  various  facets  of  

framing of charge and other related matters thereto.  Under  

Section 211, the charge should state the offence with which  

the  accused  is  charged  and  should  contain  the  other  

particulars specified in that section.  In terms of Section 214,  

in every charge words used in describing an offence shall be  

deemed  to  have  been  used  in  the  sense  attached  to  them  

respectively  by  the  law  under  which  such  offence  is  

punishable.   Another  significant  provision  is  Section  215  

which states that no error in stating either the offence or the  

particulars  required  to  be  stated  in  the  charge,  and  no  

omission  to  state  the  offence  or  those  particulars,  shall  be  

regarded  at  any  stage  of  the  case  as  material  unless  the  

accused was in fact misled by such error or omission, and it  

has occasioned a failure  of  justice.   Further,  the court  has  

been vested with the power to alter the charge.  There could be  

trial of more than one offence together and there could even be

36

joint trial of the accused.  We have referred to these provisions  

primarily to indicate that the purpose of framing of a charge is  

to put the accused at notice regarding the offence for which he  

is being tried before the court of competent jurisdiction.  For  

want of requisite information of offence and details thereof, the  

accused should not  suffer  prejudice  or there  should not  be  

failure  of  justice,  as  held  by  this  Court  in  the  case  of  

Shamnsaheb M. Multtani v.  State of Karnataka [(2001) 2 SCC  

577].  The requirements of putting the accused at notice and  

there being a charge containing the requisite particulars, as  

contemplated under Section 211, has to be read with reference  

to Section 215 of the Code.  Every omission would not vitiate  

the trial.  This Court has settled this position in the case of  

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

SC 116] wherein the Court held as under :

“36.  Sections 222 to  224 deal  with the  form  of  a  charge  and  explain  what  a  charge should contain. Section 225 deals  with  the  effect  of  errors  relating  to  a  charge. Sections 233 to 240 deal with the  joinder of charges. Sections 535 and 537  are  in  the  Chapter  that  deals  with  irregularities  generally  and  these  two  sections deal specifically with the charge

37

and  make  it  clear  that  an  omission  to  frame a charge as well  as irregularities,  errors  and omission in a charge are  all  irregularities  that  do  not  vitiate  or  invalidate  a  conviction  unless  there  is  prejudice.

37. But, apart from that, if we examine  the  learned  counsel's  contention  more  closely,  the  fallacy  in  his  argument  becomes clear. Sections 237 and 238 deal  with cases in which there is a charge to  start with and then they go on to say that  in  certain  cases  the  trial  can  proceed  beyond the matter actually charged and a  conviction for an offence disclosed in the  evidence in that type of case will be good  despite the absence of a charge in respect  of  it.  But  what  are  those  cases?  Only  those in which the additional  charge or  charges could have been framed from the  start;  and that is controlled by Sections  234, 235 and 239 which set out the rules  about joinder of charges and persons.”

Dinesh Seth v.  State of NCT of Delhi [(2008) 14 SCC 94]  

was a case where the accused was charged with an offence  

under Section 304B read with Section 34 IPC but was finally  

convicted  for  an  offence  under  Section  498A.   The  plea  of  

prejudice, on the ground that no specific charge under Section  

498A was framed and the Court, while referring to the facts  

and circumstances of the case and the cross-examination of

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the  prosecution  witnesses  found  that  it  was  unmistakably  

shown that the defence had made concerted efforts to discredit  

the  testimony  of  the  alleging  cruelty,  was  rejected  and  the  

accused  was  punished  for  an  offence  under  Section  498A.  

This clearly demonstrates the principle that in all cases, non-

framing of charge or some defect in drafting of the charge per  

se would not vitiate the trial itself.  It will have to be examined  

in the facts and circumstances of a given case.  Of course, the  

court has to keep in mind that the accused ‘must be’ and not  

merely  ‘may  be’  guilty  of  an  offence.   The  mental  distance  

between  ‘may  be’  and  ‘must  be’  is  long  and  divides  vague  

conjectures from sure conclusions.  {Shivaji Sahebrao Bobade  

& Anr. v. State of Maharashtra [AIR 1973 SC 2622]}.

23. Having stated the above, let us now examine what kind of  

offences may fall in the same category except to the extent of  

‘grave or less grave’.  We have already noticed that a person  

charged with a heinous or grave offence can be punished for a  

less  grave  offence  of  cognate  nature  whose  essentials  are  

satisfied with the evidence on record.  Examples of this kind  

have already been noticed by us like a charge being framed

39

under Section 302 IPC and the accused being punished under  

Section 304, Part I or II, as the circumstances and facts of the  

case  may  demand.   Furthermore,  a  person who is  charged  

with an offence under Section 326 IPC can be finally convicted  

for an offence of lesser gravity under Section 325 or 323 IPC, if  

the facts of the case so establish.  Alike or similar offences can  

be termed as ‘cognate offences’.  The word ‘cognate’ is a term  

primarily  used  in  civil  jurisprudence  particularly  with  

reference to the provisions of the Hindu Succession Act, 1956  

where Section 3(c) has used this expression in relation to the  

descendants of a class of heirs and normally the term is used  

with  reference  to  blood  relations.  Section  3(c)  of  the  Hindu  

Succession Act defines "cognate" as follows:

“one  person  is  said  to  be  a  cognate  of  another if the two are related by blood or  adoption but not wholly through males.”

24. The Encyclopedia Law Lexicon, explain the word ‘cognate’  

in relation to civil law as follows:  

“Cognate. -  According to Hindu Law it is  a class of heirs,  descended or borrowed  from the same earlier form.

40

- It  means  blood  relation  including  female relation.

Word  “cognate”  literally  means  “akin  in  nature”,  Ram Briksh  v.  State,  1978 All   Cri C 253”

25. This expression has also been recognized and applied to  

the  criminal  jurisprudence  as  well  not  only  in  the  Indian  

system but even in other parts of the world.  Such offences  

indicate the similarity, common essential features between the  

offences  and  they  primarily  being  based  on  differences  of  

degree have been understood to be ‘cognate offences’.  Black’s  

Law  Dictionary  (Eighth  Edition)  defines  the  expression  

‘cognate offences’ as follows:

“cognate offences. A lesser offence that  is related to the greater offense because it  shares  several  of  the  elements  of  the  greater offense and is of the same class or  category.   For  example,  shoplifting  is  a  cognate offence of  larceny because both  crimes  require  the  element  of  taking  property  with  the  intent  to  deprive  the  rightful owner of that property.”

26. Therefore, where the offences are cognate offences with  

commonality in their feature, duly supported by evidence on

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record, the Courts can always exercise its power to punish the  

accused for one or the other provided the accused does not  

suffer any prejudice as afore-indicated.

27. We may now refer to certain cases where this Court had  

the occasion to deal with such issues.  Certain divergent views  

were  also  expressed  in  relation  to  conversion  of  an  offence  

from a grave to a less grave offence.  In the case of  Lakhjit   

Singh  v.  State of Punjab [1994 Suppl.(1) SCC (Crl.) 173], the  

accused was charged with an offence under Section 302 IPC  

and convicted and sentenced for the said offence, both by the  

Trial Court as well as the High Court.  In appeal, a Division  

Bench of this Court considered whether the offence could be  

converted and the appellant could be convicted for an offence  

under  Section  306  IPC.   Having  regard  to  the  evidence  

adduced by the prosecution and the answer of the accused to  

the questions put to him under Section 313 of the Cr.P.C., the  

Court  was satisfied  that  the  accused had fair  notice  of  the  

allegations to attract an offence under Section 306 IPC and as  

such there was no denial of fair trial to the accused.  Finally,  

the Court convicted him of an offence under Section 306 IPC.

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However,  a  different  view  was  expressed  in  a  subsequent  

judgment by another Division Bench of this Court in the case  

of Sanagaraboina Sreenu  v. State of A.P. [(1997) 5 SCC 348 :  

AIR 1957 SC 623].  In that case also the Court was dealing  

with  the  situation  where  the  accused  was  charged  under  

Section 302 but had been convicted under Section 306 IPC.  

This  Court  felt  that  having  acquitted  the  accused  for  an  

offence under Section 302 which was the only charge against  

the accused, he could not have been convicted for an offence  

punishable under Section 306 IPC as both these offences were  

distinct and different.  Resultantly, the accused was acquitted.  

The  controversy  arising  from  these  two  judgments  of  this  

Court came up for consideration before a three-Judge Bench  

of this court in the case of Dalbir Singh  v.  State of U.P. [(2004)  

5 SCC 334], wherein the accused was charged with an offence  

under  Sections  302,  498A  and 304-B IPC,  but  finally  was  

convicted under Section 302 by the Trial Court and sentenced  

to  death.   On appeal,  the  High Court  acquitted  him of  the  

charge under Section 302 IPC opining that the evidence on  

record clearly established the charge under Section 306 IPC.

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Keeping  in  view the  decision  in  the  case  of  Sanagaraboina  

Sreenu  (supra),  the  High  Court  had  concluded  that  the  

accused could not be convicted under Section 306 and on this  

basis convicted him under Section 498A alone.  The argument  

raised before this Court was that the basic ingredients were  

distinct and different.  The accused was not aware of the basic  

ingredients,  the  facts  sought  to  be  established  against  him  

were not explained to him and he did not get a fair chance to  

defend  himself.   Resultantly,  he  ought  not  to  have  been  

convicted for an offence under Section 498A IPC.  Rejecting all  

these contentions, this Court, while convicting the accused for  

an  offence  under  Section  306,  held  that  the  law  stated  in  

Sanagaraboina Sreenu  (supra) was not correct enunciation of  

law and held as under :

“This question was again examined by a  three Judge Bench in Gurbachan Singh v.  State  of  Punjab  AIR  1957  SC  623   in  which it was held as under:

"[I]n 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

44

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."

17. There are a catena of decisions of this  Court  on  the  same  lines  and  it  is  not  necessary  to  burden  this  judgment  by  making  reference  to  each  one  of  them.  Therefore, in view of Section 464 Cr.P.C.,  it  is  possible  for  the  appellate  or  revisional Court to convict an accused for  an  offence  for  which  no  charge  was  framed unless the Court is of the opinion  that  a  failure  of  justice  would  in  fact  occasion.  In  order  to  judge  whether  a  failure of justice has been occasioned, it  will  be relevant to examine whether the  accused  was  aware  of  the  basic  ingredients of the offence for which he is  being  convicted  and  whether  the  main  facts  sought  to  be  established  against  him  were  explained  to  him  clearly  and  whether  he  got  a  fair  chance  to  defend  himself. We are, therefore, of the opinion  that  Sangarabonia Sreenu (AIR 1957 SC  623)  was  not  correctly  decided  as  it  purports to lay down as a principle of law  that where the accused is charged under  Section 302 IPC, he cannot be convicted  for the offence under Section 306 IPC.

XXX XXX XXX

The next question to be seen is whether  the  accused  was  confronted  with  the  aforesaid features of the prosecution case

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in his statement under Section 313 CrPC.  His statement runs into six pages where  every  aspect  of  the  prosecution  case  referred to above was put to him. He also  gave  a  long  written  statement  in  accordance  with  Section  233(2)  CrPC  wherein  he  admitted  that  Vimla  committed suicide. He also admitted that  the  scooter  and  colour  TV  were  subsequently given to him by his in-laws  but  came  out  with  a  plea  that  he  had  paid  money  and  purchased  the  same  from his in-laws. There is no aspect of the  prosecution which may not have been put  to him. We are, therefore, of the opinion  that in view of the material on record, the  conviction  under  Section  306  IPC  can  safely  be  recorded and the  same would  not  result  in  failure  of  justice  in  any  manner.  The  record  shows  that  the  accused was taken into custody on 29-3- 1991 and was released from jail after the  decision of the High Court on 20-3-1997  and  thus  he  has  undergone  nearly  six  years  of  imprisonment.  In  our  opinion,  the  period  already  undergone  (as  undertrial  and  after  conviction)  would  meet the ends of justice.”

28. We may also make a reference to another three-Judge  

Bench judgment of this Court in the case of   Shamnsaheb M.  

Multtani vs.  State of Karnataka  [(2001) 2 SCC 577] which was  

not noticed in the case of  Dalbir Singh (supra).  In that case,  

the accused initially had been charged with an offence under

46

Section  302  IPC  but  was  convicted  for  an  offence  under  

Section 304B IPC as according to the High Court there was no  

failure of justice.   This Court found error in the judgment of  

the  High  Court  convicting  the  accused  of  an offence  under  

Section  304B as  the  accused  was  not  put  at  notice  of  the  

adverse  presumption that  the  Court  is  statutorily  bound to  

draw  on  satisfaction  of  two  ingredients  of  Section  304-B.  

Therefore, this Court remanded the matter.  It also noticed the  

conflict  of  views  expressed  in  the  cases  of  Lakhjit  Singh  

(supra) and Sanagaraboina  Sreenu   (supra)  and  mentioned  

that in ‘cognate offences’,  the main ingredients are common  

and the one amongst them that is punishable with a lesser  

sentence  can  be  regarded  as  a  minor  offence.   The  Court,  

finding  that  the  ingredients  of  Sections  302  and  304B  are  

different, held as follows:

“15. Section 222(1) of the Code deals with  a case “when a person is charged with an  offence consisting of several particulars”.  The section permits the court to convict  the accused “of the minor offence, though  he was not charged with it”. Sub-section  (2)  deals  with  a  similar,  but  slightly  different situation.

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“222.  (2)  When  a  person  is  charged  with  an  offence  and  facts  are  proved  which  reduce  it  to  a  minor offence, he may be convicted  of the minor offence, although he is  not charged with it.”

16. What is meant by “a minor offence”  for  the  purpose  of  Section  222  of  the  Code?  Although  the  said  expression  is  not  defined  in  the  Code  it  can  be  discerned from the context that the test  of  minor  offence  is  not  merely  that  the  prescribed  punishment  is  less  than  the  major  offence.  The  two  illustrations  provided in the section would bring the  above  point  home  well.  Only  if  the  two  offences are cognate offences, wherein the  main  ingredients  are  common,  the  one  punishable  among  them  with  a  lesser  sentence  can  be  regarded  as  minor  offence vis-à-vis the other offence.

17. The composition of the offence under  Section 304-B IPC is vastly different from  the  formation  of  the  offence  of  murder  under  Section  302  IPC  and  hence  the  former  cannot  be  regarded  as  minor  offence vis-à-vis the latter.  However, the  position  would  be  different  when  the  charge  also  contains  the  offence  under  Section 498-A IPC (husband or relative of  husband  of  a  women  subjecting  her  to  cruelty).  As  the  word  “cruelty”  is  explained as including, inter alia,

“harassment  of  the  woman  where  such harassment is with a view to  coercing her  or  any person related

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to her to meet any unlawful demand  for any property or valuable security  or is on account of failure by her or  any  person  related  to  her  to  meet  such demand”.

18. So when a person is charged with an  offence  under  Sections  302  and  498-A  IPC on the allegation that he caused the  death of  a  bride  after  subjecting her  to  harassment  with  a  demand  for  dowry,  within a period of 7 years of marriage, a  situation may arise, as in this case, that  the offence of murder is not established  as against the accused. Nonetheless,  all  other  ingredients  necessary  for  the  offence  under  Section  304-B  IPC would  stand  established.  Can  the  accused  be  convicted in such a case for the offence  under Section 304-B IPC without the said  offence forming part of the charge?

XXX XXX XXX

30.  But  the  peculiar  situation  in  respect of an offence under Section 304-B  IPC,  as  discernible  from  the  distinction  pointed  out  above  in  respect  of  the  offence  under  Section  306  IPC  is  this:  Under  the  former  the  court  has  a  statutory  compulsion,  merely  on  the  establishment  of  two  factual  positions  enumerated above,  to  presume that  the  accused  has  committed  dowry  death.  If  any  accused  wants  to  escape  from  the  said  catch  the  burden  is  on  him  to  disprove  it.  If  he  fails  to  rebut  the  presumption the court is bound to act on  it.

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31. Now take the case of an accused who  was called upon to defend only a charge  under  Section  302  IPC.  The  burden  of  proof  never  shifts  onto  him.  It  ever  remains on the prosecution which has to  prove  the  charge  beyond  all  reasonable  doubt. The said traditional legal concept  remains unchanged even now. In such a  case  the  accused  can  wait  till  the  prosecution evidence is over and then to  show that  the  prosecution has failed to  make  out  the  said  offence  against  him.  No compulsory presumption would go to  the assistance of the prosecution in such  a  situation.  If  that  be  so,  when  an  accused  has  no  notice  of  the  offence  under  Section  304-B  IPC,  as  he  was  defending  a  charge  under  Section  302  IPC alone,  would  it  not  lead to  a grave  miscarriage  of  justice  when  he  is  alternatively  convicted  under  Section  304-B IPC and sentenced to the serious  punishment  prescribed  thereunder,  which mandates a minimum sentence of  imprisonment for seven years.

32. The serious consequence which may  ensue to the accused in such a situation  can be limned through an illustration: If  a bride was murdered within seven years  of her marriage and there was evidence to  show that either on the previous day or a  couple of days earlier she was subjected  to  harassment  by  her  husband  with  demand for dowry, such husband would  be guilty of the offence on the language of  Section 304-B IPC read with Section 113- B of the Evidence Act. But if the murder  of his wife was actually committed either

50

by a dacoit or by a militant in a terrorist  act  the  husband  can  lead  evidence  to  show that he had no hand in her death at  all.  If  he  succeeds  in  discharging  the  burden  of  proof  he  is  not  liable  to  be  convicted under Section 304-B IPC. But if  the  husband  is  charged  only  under  Section  302  IPC  he  has  no  burden  to  prove  that  his  wife  was  murdered  like  that  as  he  can  have  his  traditional  defence that the prosecution has failed to  prove the charge of murder against him  and claim an order of acquittal.

XXX XXX XXX

35. As the appellant was convicted by the  High  Court  under  Section  304-B  IPC,  without  such  an  opportunity  being  granted to him, we deem it necessary in  the interest of justice to afford him that  opportunity.  The  case  in  the  trial  court  should proceed against the appellant (not  against  the  other  two  accused  whose  acquittal  remains  unchallenged  now)  from the stage of defence evidence. He is  put to notice that unless he disproves the  presumption, he is liable to be convicted  under Section 304-B IPC.”

29. This concept of punishing the accused for a less grave  

offence than the one for which he was charged is not unique to  

the Indian Judicial System.  It has its relevancy even under  

the  English  jurisprudence  under  the  concept  of  alternative

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verdicts.   In  R  v.  Coutts  (Appellant),  [2006  UKHL  39],  the  

appellant  was  convicted  by  the  jury  of  the  murder  of  the  

deceased  on  an  indictment  charging  him  with  that  crime  

alone. The deceased had died by accident when the appellant  

and  she  had  been  engaged  in  consensual  sexual  asphyxial  

activity. The House of Lords considered whether the issue of  

manslaughter  should  have  been  left  to  the  jury  as  an  

alternative verdict which they could return under Section 6(2)  

of the Criminal Law Act, 1967.  The Court of Appeal rejected  

the appellant’s contention that this issue should have been left  

to the jury by the trial judge on the ground that for the judge  

to introduce the  possibility  of  a verdict  of  manslaughter  on  

these grounds would have transformed the nature of the case  

that the appellant was required to meet. The appellant argued  

in appeal that if  the trial judge fails to leave to the jury an  

intermediate  verdict  in  the  alternative  which  is  raised  by  

credible evidence, that is an irregularity which will render the  

verdict  unsafe.  The  Crown  took  the  stand  that  this  was  a  

deliberate  and  sadistic  killing.  In  resolving  this  issue,  the  

House  of  Lords  was  simultaneously  faced  with  the  broader

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question concerning the duty and discretion of trial judges to  

leave alternative verdicts of lesser-included offences to the jury  

where there is evidence which a rational jury could accept to  

support  such a verdict  but  neither  prosecution nor  defence  

seek it. Lord Bingham of Cornhill spoke thus on behalf of his  

four learned colleagues:

“The  public  interest  in  the  administration  of  justice  is,  in  my  opinion, best served if in any trial on  indictment the trial judge leaves to the  jury,  subject  to  any  appropriate  caution or warning, but irrespective of  the  wishes  of  trial  counsel,  any  obvious  alternative  offence  which  there  is  evidence  to  support. I  would  not  extend  the  rule  to  summary  proceedings since,  for  all  their  potential  importance  to  individuals,  they  do  not  engage  the  public  interest  to  the  same  degree.  I  would also confine the rule  to  alternative  verdicts  obviously  raised  by  the  evidence:  by  that  I  refer  to  alternatives  which  should  suggest  themselves to the mind of any ordinarily  knowledgeable  and alert  criminal  judge,  excluding  alternatives  which  ingenious  counsel  may  identify  through  diligent  research after the trial. Application of this  rule  may  in  some  cases  benefit  the  defendant,  protecting  him  against  an  excessive  conviction.  In  other  cases  it  may benefit  the public,  by providing for

53

the  conviction  of  a  lawbreaker  who  deserves punishment.  A defendant may,  quite reasonably from his point of view,  choose to roll the dice. But the interests  of society should not depend on such a  contingency.   

(emphasis supplied)”

30. Therefore, the Lords were of the unanimous opinion that  

the judge should have left a manslaughter verdict to the jury  

and his failure to do so was a material irregularity. The Court  

of Appeal, following the advice of the House of Lords, quashed  

the appellant′s conviction and ordered a retrial.

31. As is evident from the above stated principles of law in  

various judgments, there is no absolute bar or impediment, in  

law, in punishing a person for an offence less grave than the  

offences for which the accused was charged during the course  

of the trial provided the essential ingredients for adopting such  

a course are satisfied.

32. In the present case, we are primarily concerned with an  

offence punishable under Section 396 IPC and in alternative  

for an offence under Section 302 of the IPC.  The offence under  

Section 396 consists  of  two parts:  firstly,  dacoity by five or

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more  persons,  and  secondly,  committing  of  a  murder  in  

addition  to  the  offence  of  dacoity.   If  the  accused  have  

committed both these offences, they are liable to be punished  

with death or imprisonment for life or rigorous imprisonment  

for a term which may extend to ten years and be liable to pay  

fine as well.  Under Section 302 IPC, whoever commits murder  

shall  be  punished  with  death  or  imprisonment  for  life  and  

shall  also be liable to pay fine.  The offence of murder has  

been explained under Section 300 IPC.  If the act by which the  

death is caused is done with the intention of causing death, it  

is murder.  It will also be a murder, if it falls in any of the  

circumstances secondly,  thirdly and fourthly of  Section 300  

and it is not so when it falls in the exception to that Section.   

33. On the conjoint reading of Sections 396 and 302 IPC, it is  

clear  that  the  offence  of  murder  has  been  lifted  and  

incorporated in the provisions of Section 396 IPC.  In other  

words,  the offence of  murder punishable under Section 302  

and as defined under Section 300 will have to be read into the  

provisions of offences stated under Section 396 IPC.  In other  

words, where a provision is physically lifted and made part of

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another provision, it shall fall within the ambit and scope of  

principle akin to ‘legislation by incorporation’ which normally  

is  applied between an existing statute and a newly enacted  

law.  The expression ‘murder’ appearing in Section 396 would  

have to take necessarily in its ambit and scope the ingredients  

of Section 300 of the IPC.  In our opinion, there is no scope for  

any ambiguity.  The provisions are clear and admit no scope  

for application of any other principle of interpretation except  

the  ‘golden  rule  of  construction’,  i.e.,  to  read  the  statutory  

language grammatically  and terminologically  in the ordinary  

and  primary  sense  which  it  appears  in  its  context  without  

omission or addition.  These provisions read collectively, put  

the matter beyond ambiguity that the offence of murder, is by  

specific language, included in the offences under Section 396.  

It will have the same connotation, meaning and ingredients as  

are contemplated under the provisions of Section 302 IPC.

34. In light of the principles afore-stated, now we may revert  

to  the  facts  and circumstances  of  the  case  in  hand.   It  is  

admittedly  a case of  circumstantial  evidence and,  thus,  the  

evidence  has  to  be  examined  in  that  context.   There  is  no

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dispute to the fact that the charge under Sections 396 and  

201  IPC  had  been  framed  against  the  accused.   The  Trial  

Court  had  acquitted  the  four  accused  but  convicted  the  

present appellant for an offence under Sections 302 and 201  

while  convicting  another  accused,  namely  Ahsan,  for  an  

offence punishable under Section 411 IPC.  The judgment of  

the trial court was upheld by the High Court in so far as the  

acquittal  of  the four accused for the offences under Section  

396 was concerned as well  as the conviction of the present  

appellant under Section 396 IPC.  However,  the High Court  

acquitted Ahsan for the offence under Section 201 IPC which  

does not concern us in the present appeal.  The charge being  

under Section 396 alone whether the accused could have been  

convicted  for  an  offence  under  Section  302  IPC  without  

alteration of charge is the short question involved in the case  

before us.  Let us examine the evidence for conviction of the  

appellant  on the basis  of  the  circumstantial  evidence.   The  

High Court  in paragraph 35 of  its judgment has stated the  

following circumstances which undoubtedly point towards the  

guilt of the accused: -

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“1.  That the deceased (Jagdish Chandra)  left  his  house/shop  for  Nehtaur  on  30.09.77  to  realize  the  amount  from  customers.

2.  That he was seen in Nehtaur Kasba by  PW-2  Ved  Prakash  and  PW-4  Gyan  Chand  on  that  day  who  saw  him  occupying taxi no. UPS 7293.

3.  That the deceased was sitting in the  taxi along with others and appellant Rafiq  Ahmad was found on the driver seat;

4.  That the taxi in question proceeded for  Dhampur  from  Agency  Chauraha,  Nehtaur  in  the  presence  of  PW-4  Gyan  Chand;

5.  That the appellant (Rafiq Ahmad) was  arrested  by  the  police  on  2.10.77  alongwith  his  taxi  and  he  made  a  confession  to  the  IO in  the  presence  of  two  public  witnesses  that  he  had  concealed the dead body in a sugarcane  field near village kashmiri;

6.  That subsequent recovery of the dad  (sic) body of deceased (Jagdish Chandra)  from the sugarcane field at the pointing  out of the appellant in the night indicates  that Rafiq Ahmad alongwith some others  looted the cash and other valuables from  the person of the deceased.

7.   That  Jagdish  Chandra  was  done  to  death by the appellant (Rafiq Ahmad) in  the  night  intervening  30.9.77/1.10.77

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and the appellant with a view to screen  himself  from  legal  punishment  caused  disappearance  of  the  dead  body  by  throwing  the  same  in  the  sugarcane  field.”

35. The above circumstances have to be examined along with  

the statements of Ved Prakash (PW2) and Gyan Chand (PW4),  

the  witnesses  who  had  last  seen  the  deceased  with  the  

appellant. The statements of the Investigating Officer (PW11)  

and  the  witnesses  including  Pyare  Lal  (PW3),  in  whose  

presence the dead body was recovered at  the  behest  of  the  

appellant, by means of recovery memo Ex.PW Ex-Ka 3 are the  

other material  pieces of  evidence which would complete the  

chain of events and point undoubtedly towards the guilt of the  

accused.  The accused, for the reasons best known to him,  

had  taken  up  a  stand  of  complete  denial  in  his  statement  

dated 20th February, 1981 recorded under Section 313 Cr.P.C.  

and opted not to explain his whereabouts at the relevant time.  

Furthermore,  he  was  a  regular  taxi  driver  at  the  stand  of  

Agency Chauraha.  It is true that the statement under Section  

313  Cr.P.C.  cannot  be  the  sole  basis  for  conviction  of  the  

accused but certainly it can be a relevant consideration for the

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courts  to  examine,  particularly  when  the  prosecution  has  

otherwise  been able  to  establish the  chain  of  events.   It  is  

clearly  established  from  the  evidence  on  record  that  the  

deceased was a regular trader and used to come to Nehtaur  

from where he was picked up by the appellant on the fateful  

day.   These  were  certain  definite  circumstances  clearly  

indicating  towards  the  involvement  of  the  appellant  in  the  

commission of the crime.  The prosecution has been able to  

establish its case beyond reasonable doubt on the basis of the  

circumstantial evidence.  There is no significant link which is  

missing in the case put forward by the prosecution.   

36. At  this  stage,  we  may  refer  to  a  Constitution  Bench  

judgment of this Court in the case of Shyam Behari  v.  State   

of Uttar Pradesh [AIR 1957 S.C. 320] wherein the accused after  

being charged for an offence under Section 396 IPC was finally  

convicted  under  Section  302  IPC.   The  Court  in  the  said  

judgment held as under:

“15.  It is, however, unnecessary to do so  because in the facts and circumstances of  the present case the appellant is liable to  be convicted of the offence under Section

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302 Indian Penal Code without anything  more.   The  charge  under  Section  396,  Indian  Penal  Code  comprised  of  two  ingredients:-  (1)  the  commission  of  the  dacoity,  and  (2)  the  commission  of  the  murder  in  so  committing  the  dacoity.  The  first  ingredient  was  proved  without  any doubt and was not challenged by the  learned  counsel  for  the  appellant.   The  second ingredient also was proved in any  event  as regards the commission of  the  murder  because  the  attention  of  the  accused  was  focused  not  only  on  the  commission  of  the  offence  while  committing  the  dacoity  but  also  on the  individual  part  which  he  took  in  the  commission of that murder.  So far as he  was concerned, he knew from the charge  which  was  framed  against  him that  he  was sought  to  be made responsible  not  only  for  the  commission  of  the  dacoity  but  also  for  the  commission  of  the  murder in committing such dacoity.  The  evidence which was led on behalf of the  prosecution  specifically  implicated  him  and  he  was  named  by  the  prosecution  witnesses  as  the  person  who  shot  at  Mendai  while  crossing  the  ditch  of  the  Pipra  Farm.   His  examination  under  section  342  of  the  Criminal  Procedure  Code  also  brought  out  that  point  specifically  against  him  and  he  was  questioned  in  that  behalf.   Both  the  Courts  below  recorded  their  concurrent  findings of fact in regard to the part taken  by the appellant in the commission of the  murder  of  Mendai.   Under  these  circumstances it could not be urged that  the  appellant  could  not  be  convicted  of

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the  offence  under  Section  302,  Indian  Penal  Code  if  such  a  charge  could  be  made out against him (Vide our decision  in  Willie  (William)  Slaney   v.   State  of  Madhya Pradesh, Crl App No. 6 of 1955  D/- 31-10-1955 ( (S) AIR 1956 SC 116)  (F)”

37. The above Constitution Bench judgment of this Court, in  

law, squarely applies to the present case.  We ought not be  

understood  to  say  that  the  facts  of  both  the  cases  are  

identical.  In the case of  Shyam Behari (supra), the accused  

had killed the deceased while retreating after committing the  

dacoity  while  in  the  present  case  the  evidence,  though  

circumstantial,  is  that the appellant  had killed the accused  

brutally and then hid his dead body in the fields to destroy the  

evidence.  Thus, suffice it  to note that both the cases have  

some  similarity  in  circumstances  but  the  principle  of  law  

stated in Shyam Behari’s case (supra) is squarely applicable to  

the present case.   

38. For the reasons afore-recorded, we are of the considered  

view that no prejudice has been caused to the appellant by his  

conviction for an offence under Section 302 IPC though he was

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initially charged with an offence punishable under Section 396  

IPC read with Section 201 IPC.  Further, the nature of injuries  

namely three incised wounds, three abrasions and severing of  

the trachea, caused by a sharp-edged weapon as noticed by  

the High Court in para 34 of its judgment, indicate that the  

accused knew that the injury inflicted would be sufficient in  

the ordinary course of nature to cause death.  The ‘prejudice’  

has  to  be  examined  with  reference  to  the  rights  and/or  

protections  available  to  the  accused.   The  incriminating  

evidence had been clearly put to the accused in his statement  

under  Section  313  Cr.P.C.   The  circumstances  which  

constitute an offence under Section 302 were literally put to  

him, as Section 302 IPC itself is an integral part of an offence  

punishable  under  Section  396  IPC.   The  learned  counsel  

appearing for the appellant has not been able to demonstrate  

any prejudice which the appellant has suffered in his right to  

defence,  fair  trial  and  in  relation  to  the  case  of  the  

prosecution.   Once  the  appellant  has  not  suffered  any  

prejudice, much less a serious prejudice, then the conviction  

of the appellant under Section 302 IPC cannot be set aside

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merely for want of framing of a specific/alternate charge for an  

offence  punishable  under  Section  302  IPC.   It  is  more  so  

because the dimensions and facets of an offence under Section  

302 are incorporated by specific language and are inbuilt in  

the offence punishable under Section 396 IPC.  Thus, on the  

application  of  principle  of  ‘cognate  offences’,  there  is  no  

prejudice caused to the rights of the appellant.

39.  For  the  reasons  afore-stated,  we  find  no merit  in  this  

appeal and the same is dismissed.

.....................................J.                  [Dr. B.S. Chauhan]

.....................................J.        [Swatanter Kumar]

New Delhi; August 4, 2011