Swatanter Kumar, J.— Fine distinctions of law, if discerning, should normally be recognised and permitted to operate in their respective fields. With the development of criminal jurisprudence, the law has recognised 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 for a less grave offence because the offence of greater gravity has not 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.
2. All the five accused, namely, Rafiq Ahmad, Ahsan, Imamuddin, Arun Kumar and Yashwant Singh, according to the prosecution, in the intervening night of 30-9-1977 and 1-10-1977 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 alias Jagdish Chandra alias 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.
3. Shri Krishna Garg, uncle of the deceased was carrying on the wholesale business of sugar, khandsari, flour, foodgrains, etc. under the name of M/s 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 realise money from them.
4. On Friday, 30-9-1977 also, Jagdish Prasad left for Nehtaur to collect money. Ordinarily, he used to return home between 9.00 p.m and 10.00 p.m with collections of roughly up to Rs 10,000. Though, Jagdish Prasad, on that day also had collected more than Rs 8000 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.
5. 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 Chauraha, Nehtaur. The matter was reported and after making an entry in the general diary on 1-10-1977 at 2.30 p.m, SI K.L Verma started the investigation and interrogated a number of persons including Shri Krishna Garg and Pyare Lal. Thereafter, a case was registered under Section 364 of the Penal Code, 1860 (IPC). On 2-10-1977, the investigation was taken up by Station Officer (SO) Raj Pal Yadav and both Mr Verma and Mr Yadav left the police station together for investigation and reached Police Station Dhampur. At about 9.00 p.m, 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 the presence of Pyare Lal and Surendra Kumar.
6. During the course of the investigation, the accused Rafiq Ahmad also made a confessional statement before the investigating officer in the 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 (PW 9) prepared the inquest report and the body was subjected to post-mortem by Dr. R.B Saxena (PW 8), the Medical Officer.
7. On 3-10-1977, the accused Ahsan and his brother Imamuddin were arrested with the help of Zamal Ahmad alias Khan Zamaloo and Sattar. A gold ring was recovered from the possession of Ahsan. These arrests were effected at about 9.00 p.m Similarly, the accused Yashwant Singh was arrested by the police from the railway platform at 1.00 a.m on 2-10-1977.
8. We may refer to the post-mortem report and the ante-mortem injuries found by Dr. Saxena (PW 8) on the body of the deceased which are as follows:
“(1) Incised wound with chopping of left ear vertically oblique with half part of ear missing.
(2) Incised wound oblique from above downwards below left side angle of jaw to upper neck 1¼″ × ¾″ × ¼″.
(3) Incised wound 6″ × 1″ × bone-deep at front of neck just above Adam's cartilage.
(4) Abrasion ¼″ × ¼″ on back of both shoulders.
(5) Abrasion 1/8″ × ¼″ on back of right elbow joint.
(6) Abrasion ¼″ × ¼″ on outer side and back of left elbow.”
In the opinion of Dr. Saxena, death was caused on account of respiratory failure and haemorrhage resulting from severing of trachea.
9. The investigation was completed and the charge-sheet in accordance with the provisions of Section 173 of the Criminal Procedure Code, 1973 (for short “CrPC”) was filed before the court of competent jurisdiction. The accused were committed to the Court of Session and tried in accordance with law.
10. The learned trial court having considered the material and the report submitted to it in terms of Section 173 CrPC and vide order dated 11-9-1979 framed the following charge against all the accused, including the present appellant, Rafiq Ahmad:
“ST No. 3/78
State v. Rafiq
Charge
I, Jaswant Singh, IIIrd Additional Sessions Judge, Bijnor hereby charge you Rafiq, Ahsan, Imamuddin, Arun Kumar and Yashwant Singh, accused as follows:
That you in the night of 30-9-1977 committed dacoity in Taxi No. UPS 7293 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 Prasad and that you thereby committed an offence punishable under Section 396 IPC and within my cognizance. And I hereby direct that you be tried by me on the said charge.
Dated: 11-9-1979sd/-
Judge
Charge read over and explained in Hindi to the accused who pleaded not guilty.
sd/-
Judge
sd/-
sd/-
sd/-
sd/-
sd/-
Rafiq
Ahsan
Imamuddin
Arun Kumar
Yashwant Singh”
This charge came to be amended by the learned trial court and the amended charge read as under:
“ST No. 3/78
State v. Rafiq
Amended Charge
I, Jaswant Singh, IIIrd Additional Sessions Judge, Bijnor 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 30-9-1977 and 1-10-1977 committed dacoity in Ambassador Car No. UPS 7293 belonging to Rafiq, accused while it was going from Nehtaur to Dhampur on the pucca road within the circle of Police Station Nehtaur, District Bijnore and that in the commission of the said dacoity, murder of Jagdish Prasad 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 30-9-1977 and 1-10-1977 in the area of Village Kashmiri, Police Station Nehtaur, District Bijnore knowing or having reason to believe that an offence under Section 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 Prasad in the sugarcane field of Ikrar Ahmad with the intention of screening yourself from legal punishment and thereby committed an offence punishable under Section 201 IPC and within the cognizance of this court.
And I hereby direct that you be tried by this court on the said charge.
Dated: 25-2-1980sd/-
Judge
Charge read over and explained in Hindi to the accused who pleaded not guilty.
sd/-
Judge
sd/-
sd/-
sd/-
sd/-
sd/-
Rafiq
Ahsan
Imamuddin
Arun Kumar
Yashwant Singh”
11. The prosecution examined as many as 12 witnesses to prove its case. Besides the statement of these witnesses, prosecution had also placed reliance on Exts. 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 CrPC was recorded by the court on 20-2-1981. 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 (DW 1) and Shri J.P Singh (DW 2) and placed a number of documents on record.
12. The trial court, by a detailed judgment dated 17-8-1981, came to the conclusion that Rafiq Ahmad was guilty of charges under Sections 302 and 201 IPC under which the accused was liable for conviction and punishment. The 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 the 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 a further period of six months.
13. 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. Rafiq Ahmad, in the present appeal, has impugned the judgment of the High Court.
14. The entire emphasis of the submissions made on behalf of the appellant is primarily founded on the 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 IPC and as such the entire trial and conviction of the appellant is vitiated in law.
15. 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 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.
16. 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 IPC.
17. 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 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.
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.”
18. As is evident from the amended charge reproduced earlier, the appellant was charged with offences under Sections 396 and 201 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.
19. Section 391 IPC explains the offence of “dacoity”.
“391. 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 or 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” simpliciter is punishable with rigorous imprisonment which may extend to ten years or 14 years depending upon the facts of a given case.
20. 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.
21. 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.
22. Section 299 defines “culpable homicide”.
“299. 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.
23. 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 in 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 to 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 a sentence lesser than life imprisonment.
24. 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 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 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 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.
25. 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 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 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.
26. There can be cases where it may not be possible at all to punish a person for 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.
27. A Constitution Bench of this Court in Willie (William) Slaney v. State of M.P AIR 1956 SC 116, 1956 Cri LJ 291 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: (AIR pp. 121, 123 & 128-29, paras 6, 7, 17 & 45)
“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 lines that accord with our notions of natural justice.
If he does, if he is tried by a competent court, if he is told and clearly understands the nature of the offence for which he is being tried, if the case against him is fully and fairly explained to him and he is afforded a full and fair opportunity of defending himself, then, provided there is ‘substantial’ compliance with the outward forms of the law, mere mistakes in procedure, mere inconsequential errors and omissions in the trial are regarded as venal by the Code and the trial is not vitiated unless the accused can show substantial prejudice. That, broadly speaking, is the basic principle on which the Code is based.
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.
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 26 of 1955, where misjoinder of 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 (1900-01) 28 IA 257. 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. King Emperor (1937-38) 65 IA 158, we would say: (IA pp. 177-78)
‘… 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. If 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’ 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.
45. 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 counsel (Atta Mohammad v. King Emperor (1929-30) 57 IA 71, AIR 1930 PC 57 (2), AIR PC at p. 58) it may in a given case be proper to conclude that the accused 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’ (Abdul Rahman v. King Emperor (1926-27) 54 IA 96, AIR 1927 PC 44, AIR at pp. 46-47 & 49).
But these are matters of fact which will 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 as if there were.”
28. 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.
29. In Iman Ali v. State of Assam AIR 1968 SC 1464, 1969 Cri LJ 23 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.
30. 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: (Iman Ali case AIR 1968 SC 1464, 1969 Cri LJ 23, AIR pp. 1465-66, paras 3 & 4)
“3. The 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 AIR 1953 SC 364, 1954 SCR 145, 1953 Cri LJ 1465, which was explained in the following words: (AIR pp. 367-68, para 39)
‘39. … 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 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 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.
4. The learned counsel in this connection referred us to a decision of a Division Bench of the Allahabad High Court in Lal Singh v. Emperor AIR 1938 All 625, where it was held: (AIR p. 631)
‘… We do not consider that as a general rule a sentence of death should necessarily follow a conviction under Section 396 IPC, and this section differs from Section 302 IPC, in that respect. The rule is under Section 302 that a sentence of death should follow unless reasons are shown for giving a lesser sentence. No such rule applies to Section 396 IPC.’
Again, we do not think that the learned Judges of the Allahabad High Court intended to lay down that, even in cases where a person is convicted for the offence under Section 396, IPC, and there is clear evidence that he himself had committed a cold-blooded murder in committing the dacoity, a sentence of death should not follow. Clearly the view expressed was meant to apply to those cases where there could be no definite finding as to which person committed the murder and all the members of the gang are held constructively guilty of the offence punishable under Section 396 IPC. A principle enunciated for such a situation cannot be applied to a case where there is direct evidence that a particular accused committed the murder himself, as is the finding in the present case.”
31. With the passage of time more and more such cases came up for consideration of this Court as well as the High Courts. The development of law has not changed the basic principles which have been stated in the judgments aforereferred. Usually an offence of grave nature includes in itself the essentials of a lesser but cognate offence. In other words, there are classes of offences like offences against the human 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.
32. In Anil v. Admn. of Daman & Diu (2006) 13 SCC 36, 2006 Supp (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 offences punishable under Sections 364, 302 and 201 IPC, but was finally convicted for an offence punishable under Section 364-A and was awarded the 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.
33. The Court in Anil case (2006) 13 SCC 36, 2006 Supp (9) SCR 466, 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 v. Yadla Srinivasa Rao (2003) 1 SCC 217, Kammari Brahmaiah v. Public Prosecutor (1999) 2 SCC 522, Dalbir Singh v. State of U.P (2004) 5 SCC 334, Kamalanantha 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: (Anil case (2006) 13 SCC 36, 2006 Supp (9) SCR 466)
“54. 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.
(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.
55. The ingredients for commission of offence under Sections 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 (sic of being murdered) satisfies the requirements of Section 364 of the Penal Code, for obtaining a conviction for commission of an offence under Section 364-A thereof it is necessary to prove that not only has such kidnapping or abetment 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 foreign State or international intergovernmental organisation or any other person to do or abstain from doing any act or to pay a ransom.
56. 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 Penal Code. It may be true that the kidnapping 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.
57. It is not a case unlike (sic like) Kammari Brahmaiah (1999) 2 SCC 522 where the offence was of a lesser gravity, as has been observed by Shah, J.”
34. In the light of the above principles, let us now examine the meaning of “prejudice”. The expression has been defined in Black's Law Dictionary (8th Edn., p. 1218), 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 defence that will be unavailable or endangered in a second suit.
Undue prejudice.—The harm resulting from a fact-trier's being exposed to 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.”
35. 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 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 an 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.
36. 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 rights available to him under the criminal jurisprudence, then the accused can seek benefit under the orders of the court.
37. 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.
38. 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 the weakening of the case of the prosecution and benefit to the accused in accordance with law.
39. During the conduct of the 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 the 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:
“214. Words in charge taken in sense of law under which offence is punishable.—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.”
40. Another significant provision is Section 215 which states that:
“215. Effect of errors.—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 joint trial of the accused.
41. 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 the offence and details thereof, the accused should not suffer prejudice or there should not be failure of justice, as held by this Court in 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 CrPC, 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 Willie (William) Slaney v. State of M.P AIR 1956 SC 116, 1956 Cri LJ 291 wherein the Court held as under: (Willie case AIR 1956 SC 116, 1956 Cri LJ 291, AIR pp. 126-27, paras 36 & 37)
“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 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.”
42. Dinesh Seth v. State (NCT of Delhi) (2008) 14 SCC 94 was a case where the accused was charged with an offence under Section 304-B read with Section 34 IPC but was finally convicted for an offence under Section 498-A. The plea of prejudice, on the ground that no specific charge under Section 498-A was framed and the court, while referring to the facts and circumstances of the case and the cross-examination of the prosecution witnesses found that it was unmistakably shown that the defence had made concerted efforts to discredit the testimony alleging cruelty, was rejected and the accused was punished for an offence under Section 498-A. This clearly demonstrates the principle that in all cases, non-framing of a 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 Sahabrao Bobade v. State of Maharashtra (1973) 2 SCC 793, AIR 1973 SC 2622).
43. 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 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.
44. 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:
“3. (c) ‘cognate’.—one person is said to be a ‘cognate’ of another if the two are related by blood or adoption but not wholly through males;”
45. The encyclopaedia The Law Lexicon, explains the word “cognate” in relation to the civil law as follows:
“Cognate.—According to Hindu Law it is a class of heirs, descended or borrowed from the same earlier form.
It means blood relation including female relation.
Word ‘cognate’ literally means ‘akin in nature’, Ram Briksh v. State 1978 All Cri C 253.”
This expression has also been recognised 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”.
46. Black's Law Dictionary (8th Edn., p. 1111) defines the expression “cognate offense” as follows:
“Cognate offense.—A lesser offense 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 offense of larceny because both crimes require the element of taking property with the intent to deprive the rightful owner of that property.”
47. Therefore, where the offences are cognate offences with commonality in their feature, duly supported by evidence on record, the courts can always exercise its power to punish the accused for one or the other offence provided the accused does not suffer any prejudice as aforeindicated.
48. 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 Lakhjit Singh v. State of Punjab 1994 Supp (1) SCC 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 CrPC, 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. However, a different view was expressed in a subsequent judgment by another Division Bench of this Court in Sangaraboina Sreenu v. State of A.P (1997) 5 SCC 348, AIR 1997 SC 3233
49. In Sangaraboina case (1997) 5 SCC 348, AIR 1997 SC 3233 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.
50. The controversy arising from these two judgments of this Court came up for consideration before a three-Judge Bench of this Court in Dalbir Singh v. State of U.P (2004) 5 SCC 334, wherein the accused was charged with offences under Sections 302, 498-A 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. Keeping in view the decision in Sangaraboina Sreenu (1997) 5 SCC 348, AIR 1997 SC 3233, the High Court had concluded that the accused could not be convicted under Section 306 and on this basis convicted him under Section 498-A 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 498-A IPC.
51. Rejecting all these contentions, this Court in Dalbir Singh case (2004) 5 SCC 334, while convicting the accused for an offence under Section 306, held that the law stated in Sangaraboina Sreenu (1997) 5 SCC 348, AIR 1997 SC 3233 was not the correct enunciation of the law and held as under: (Dalbir Singh case (2004) 5 SCC 334)
“16. This question was again examined by a three-Judge Bench in Gurbachan Singh v. State of Punjab AIR 1957 SC 623, 1957 Cri LJ 1009 in which it was held as under: (AIR p. 626, para 7)
‘7. … [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 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 CrPC, 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 Sangaraboina Sreenu (1997) 5 SCC 348, AIR 1997 SC 3233 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.
18. … The next question to be seen is whether the accused was confronted with the aforesaid features of the prosecution case 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.”
52. We may also make a reference to another three-Judge Bench judgment of this Court in Shamnsaheb M. Multtani v. State of Karnataka (2001) 2 SCC 577 which was not noticed in Dalbir Singh (2004) 5 SCC 334. In that case, the accused initially had been charged with an offence under Section 302 IPC but was convicted for an offence under Section 304-B IPC as according to the High Court there was no failure of justice.
53. This Court in Shamnsaheb case (2001) 2 SCC 577 found error in the judgment of the High Court convicting the accused for an offence under Section 304-B as the accused was not put at notice of the adverse presumption that the Court is statutorily bound to draw on satisfaction of the two ingredients of Section 304-B. Therefore, this Court remanded the matter. It also noticed the conflict of views expressed in Lakhjit Singh 1994 Supp (1) SCC 173 and Sangaraboina Sreenu (1997) 5 SCC 348, AIR 1997 SC 3233 cases 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.
54. The Court, finding that the ingredients of Sections 302 and 304-B IPC are different, held as follows: (Shamnsaheb case (2001) 2 SCC 577 & 587-88, paras 15-18, 30-32 & 35)
“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.
‘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 woman 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 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 seven 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?
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.
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 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.
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.”
55. 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 verdicts.
56. In R. v. Coutts (2006) 1 WLR 2154, (2006) 4 All ER 353, 2006 UKHL 39 (HL), the appellant was convicted by the jury for 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.
57. The appellant in Coutts case (2006) 1 WLR 2154, (2006) 4 All ER 353, 2006 UKHL 39 (HL) 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 question concerning the duty and discretion of the 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 the prosecution nor the defence seek it.
58. Lord Bingham of Cornhill spoke thus on behalf of his four learned colleagues: (Coutts case (2006) 1 WLR 2154, (2006) 4 All ER 353, 2006 UKHL 39 (HL), WLR p. 2167, para 23)
“23. 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 the alternatives which an 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 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)
59. 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.
60. As is evident from the abovestated 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.
61. In the present case, we are primarily concerned with an offence punishable under Section 396 IPC and in the alternative for an offence punishable under Section 302 IPC. The offence under Section 396 consists of two parts: firstly, dacoity by five or 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 in Secondly, Thirdly and Fourthly of Section 300 and it is not so when it falls in the Exceptions to that section.
62. 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 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 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.
63. In the light of the principles aforestated, 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 dispute to the fact that the charges 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 offences 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 insofar 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.
64. The charge being under Section 396 alone, whether the accused could have been convicted for an offence under Section 302 IPC without the alteration of the charge is the short question involved in the case before us.
65. Let us examine the evidence for conviction of the appellant on the basis of the circumstantial evidence. The High Court in para 35 of its judgment has stated the following circumstances which undoubtedly point towards the guilt of the accused:
“(1) That the deceased (Jagdish Chandra) left his house/shop for Nehtaur on 30-9-1977 to realise 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 2-10-1977 along with 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 dead body of deceased (Jagdish Chandra) from the sugarcane field at the pointing out of the appellant in the night indicates that Rafiq Ahmad along with 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 30-9-1977/1-10-1977 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.”
66. The above circumstances have to be examined along with the statements of Ved Prakash (PW 2) and Gyan Chand (PW 4), the witnesses who had last seen the deceased with the appellant. The statements of the investigating officer (PW 11) and the witnesses including Pyare Lal (PW 3), in whose presence the dead body was recovered at the behest of the appellant, by means of recovery memo Ext. PW, Ext. 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 recorded under Section 313 CrPC dated 20-2-1981 and opted not to explain his whereabouts at the relevant time. Furthermore, he was a regular taxi driver at the stand of Agency Chauraha.
67. It is true that the statement under Section 313 CrPC cannot be the sole basis for conviction of the accused but certainly it can be a relevant consideration for the 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.
68. At this stage, we may refer to a Constitution Bench judgment of this Court in Shyam Behari v. State of U.P AIR 1957 SC 320, 1957 Cri LJ 416 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: (AIR pp. 323-24, para 15)
“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 for the offence under Section 302 of the Penal Code without anything more. The charge under Section 396 of the 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 for the offence under Section 302 of the Penal Code if such a charge could be made out against him [vide our decision in Willie (William) Slaney v. State of M.P AIR 1956 SC 116, 1956 Cri LJ 291].”
69. 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 Shyam Behari AIR 1957 SC 320, 1957 Cri LJ 416, 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 the circumstances but the principle of law stated in Shyam Behari case AIR 1957 SC 320, 1957 Cri LJ 416 is squarely applicable to the present case.
70. For the reasons aforerecorded, 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 initially charged with offences 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.
71. 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 CrPC. 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.
72. 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 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 the 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.
73. For the reasons aforestated, we find no merit in this appeal and the same is dismissed.