Monday, 27 July 2015

Distinction between complete absence of charge and error or omission in charge

“A case of complete absence of a charge is covered by
Section 535, whereas an error or omission in a charge is
dealt with by Section 537. The consequences seem to be
slightly different. Where there is no charge, it is for the
court to determine whether there is any failure of justice.
But in the latter, where there is mere error or omission in
the charge, the court is also bound to have regard to the
fact whether the objection could and should have been
raised at an earlier stage in the proceedings.”
Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 2047 OF 2008
Vutukuru Lakshmaiah ... Appellant
Versus
State of Andhra Pradesh ... Respondent
WITH
CRIMINAL APPEAL NO. 2052 OF 2008
Citation;2015(2) crimes 349 SCC
Dipak Misra, J.

The present appeals are directed against the judgment
and order dated 22.03.2007 passed by the High Court of
Andhra Pradesh in Criminal Appeal No. 517 of 2005, whereby
it has confirmed the judgment of conviction and order of
Page 2
sentence passed by the learned Additional Sessions Judge,
Nellore in Sessions Case No. 365 of 1998 whereunder he had
found the appellants guilty of the offence under Sections 302
and 148 of the Indian Penal Code (IPC) and sentenced each of
them to suffer rigorous imprisonment for life on the first score
and imposed separate sentence under Section 148 IPC with
the default clause stipulating that all the sentences shall be
concurrent. Be it stated, the High Court has acquitted three
of the convicted persons.
2. Filtering the unnecessary details, the prosecution case is
that the deceased, Patrangi Ramanaiah, was a supporter of
the Telugu Desam Party, while accused Vutukuru
Lakshmaiah, A-1, was the Councilor for Ward No. 16 of Nellore
Municipality and belonged to the Congress Party. One Patrangi
Velongini Raja of Telugu Desam Party was allegedly murdered
by accused, A-1, and his brother and in the said prosecution
the deceased and PW-1 were witnesses.
3. On 14.05.1996 about 9.30 p.m., Pamula Ramanaiah,
PW-1, and the deceased were travelling on their scooter
towards Akuthota Harijanawada, and when they reached a
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Page 3
sweet meat shop, Meriga Yedukondalu, A-4, and Utukuru
Seenaiah, A-6 (since deceased) attacked them as a result of
which, PW1, who was driving the scooter lost control of the
scooter and both of them fell down. As the prosecution story
proceeds, Vutukuru Lakshmaiah, A-1, Rayapu Srinivasulu,
A-2, Rayapu Sivaiah, A-3, Meriga Ramaiah, A-5, and Meriga
Penchlaiah, A-7, stabbed the deceased multiple times with
knives, while A-4 and A-6 beat him with iron rods. A-2 then
tried to stab PW-1 but missed. Thereafter A-3 stabbed PW-1
with a knife on his left arm, but he managed to escape and hid
in the PWD office situated nearby.
4. As the prosecution case further unfurls, Pantrangi
Venkateswarlu, PW-2, and Ragutu Sreenivasulu, PW-3, who
were returning from their work witnessed the incident and
after the assailants left the scene of crime, they took the
deceased to the Government Head Quarters Hospital, Nellore.
Being informed about the incident, the police immediately
reached the scene of incident where they found injured PW-1
who had returned to the scene of occurrence and took him to
the hospital, where Md. Kareemula, Head Constable, PW-20,
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Page 4
recorded the statement of PW-1, Ex. P-1, and it was handed
over to G. Srinivasa Rao, Sub-Inspector of Police, PW-21.
Based on the statement, Crime No. 57 of 1996 U/s. 147, 148,
324, 307 r/w 149 IPC was registered and the investigation
commenced. The deceased was subsequently shifted to Apollo
Hospital, Madras for better treatment. Meanwhile the II
Additional Judicial First Class Magistrate, Nellore, PW-18,
recorded the dying declaration of the deceased at the General
Head Quarter Hospital, which has been brought on record as
Ex. P-13. On 15.05.1996, PW-21, visited the scene of offence,
prepared the panchanama, Ex. P-7, the rough sketch, Ex.
P-18, and recorded statements of PWs 1, 2, 3, 5, 6, 8, 12, 17.
After the receipt of intimation of death of the deceased on
18.05.1996, there was alteration of the offence to Section 302
IPC and the investigation was taken over by K. Veera Reddy,
PW-22, the Inspector of police, who visited the Apollo hospital,
Madras and held inquest over the dead body of the deceased
in presence of G. Pulla Reddy, PW-18, and sent a requisition
to Dr. C. Manohar, PW-19, Assistant Professor, Forensic
Medicine at Kilbank Medical College, Chennai for postmortem
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Page 5
examination who carried out the autopsy over the dead body
of the deceased on 18.05.1996 and opined vide Ex.16, the
postmortem report, that the cause of death was due to
multiple stab injuries. PW-22, the Investigating Officer,
arrested A-2 to A-7 and A9 on 28.05.1996 and at the instance
of the arrested persons, except A-9, the investigating agency
recovered four knives and two iron rods. After completion of
the investigation, the chargesheet was placed before the
competent court and eventually the matter was tried by
learned Additional Sessions Judge. The accused persons took
the plea of false implication and the A-1, additionally took the
plea of alibi.
5. The principal witnesses are, Pamula Ramanaiah, PW-1,
Pantrangi Venkateswarlu, PW-2, Ragutu Sreenivasulu, PW-3,
II Additional Judicial First Class Magistrate, Nellore, PW-18,
and Dr. C. Manohar, PW-19. The defence in support of its
plea, examined 7 witnesses i.e. DW-1 to DW-7. The learned
trial Judge, after appreciating the entire evidence, both oral
and documentary, on record, especially the evidence of PW-1
to PW-3, and the dying declaration, Ex.P-13, convicted A-1 to
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Page 6
A-5 and A-7 to A-9 for the offences punishable under Sections
148 and 302 IPC for causing death of deceased Patrangi
Ramanaiah, convicted A-2 to A-4 for the offence punishable
under Section 324 IPC and A5 for the offences punishable
under Sections 324 read with 149 IPC for causing injuries to
PW-1.
6. Being aggrieved by the judgment of the trial Court, all the
accused persons preferred Criminal Appeal no. 517 of 2005
wherein the High Court, after re-appreciating the evidence in
entirety, affirmed the conviction and sentence passed by the
trial court in respect of the present appellants and partly
allowed the appeal thereby acquitting A4, A8 and A9 giving
them the benefit of doubt.
7. We have heard Mr. Nagendra Rai, learned senior counsel
for the appellants and Ms. June Chaudhary, learned senior
counsel for the State.
8. Criticizing the judgment of conviction, it is submitted by
Mr. Nagendra Rai, learned senior counsel for the appellants
that the evidence adduced by the prosecution witnesses
should have been discarded inasmuch as their testimony is
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replete with contradictions and as the occurrence had taken
place during the night about 9.30 p.m. and there was no
electric supply and hence, it could not have been possible on
the part of the witnesses to see the accused-appellants by
lighting the earthen mud lamp with a match stick. Learned
counsel would contend that they are chance witnesses and
their evidence really do not inspire confidence and, in fact,
when cautiously scrutinized, they deserve to be totally
discarded. It is urged by him that the dying declaration, Ex.
P-13, does not inspire confidence inasmuch as the allegations
are omnibus in character and no specific overt acts have been
attributed to any of these appellants. It is contended by him
that when the High Court has found that A-4, A-8 and A-9
have been falsely implicated, it would have been appropriate
on the part of the High Court to hold that the present
appellants also had been falsely implicated in the case. It is
canvassed by him that the appellant no. 1 was attending the
Water Committee meeting on the date of occurrence and the
same had been established by bringing acceptable evidence on
record by citing witnesses and also by filing documents Ex.
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D-3 to D-8 which are documents maintained by Nellore
Municipality. It is his further submission that learned trial
Judge as well as the High Court has not given any justifiable
reason to disregard the evidence of DW-1 to DW-7. It is also
urged by him that the appellants could not have been
convicted in aid of Section 149 IPC as the charge framed
against them was simplicitor Section 302 IPC; and even if
Section 149 IPC can be resorted to, in the absence of specific
charge, the Court is required to see the circumstances, what is
the nature of offence committed. Alternatively, it is submitted
by him that even if the assault on the deceased is accepted,
regard being had to the absence of intention and the nature of
injury suffered by the deceased and death having taken place
after three days, they may be liable for conviction under
Section 304 Part II IPC and not under Section 302 IPC. To
buttress the said submission, he has drawn inspiration from
decisions in State of Orissa v. Dibakar Naik1, Sunder Lal
1 (2002) 5 SCC 323
8
Page 9
v. State of Rajasthan2 and Marimuthu v. State of Tamil
Nadu3.
9. Ms. June Chaudhary, learned senior counsel appearing
for State, resisting the aforesaid arguments, contended that
there is no reason to discard the dying declaration as there is
no infirmity in the same. It is further urged by her that the
testimony of all the witnesses are credible and the contention
that PW-2 and PW-3 are chance witnesses does not deserve
any acceptance. Learned senior counsel for the State would
further submit that though the charge has not been framed
under Section 149 of the IPC, there is no bar, regard being had
to the evidence on record, to convict the accused-appellants
with the aid of the said provision. It is canvassed by her that
it is not a case for conversion of the offence, for it is squarely a
case under Section 302 IPC and not under Section 304 Part I
or Part II of the IPC.
10. First, we shall advert to the issue of non-framing of
charge under Section 149 IPC. While dealing with the said
2 (2007) 10 SCC 371
3 (2008) 3 SCC 205

issue, in Willie (William) Slaney v. State of M.P.4 Vivian
Bose, J., observed that every reasonable presumption must be
made in favour of the accused person; he must be given the
benefit of every reasonable doubt. The same broad principles
of justice and fair play must be brought to bear when
determining a matter of prejudice as in adjudging guilt. The
learned Judge proceeded to state that all said and done, the
Court is required 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 whether he was given a full and
fair chance to defend himself. Thereafter, Bose, J. proceeded
to observe thus:-
“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
4 AIR 1956 SC 116

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-Emperor5) 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-Emperor6).
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.”
Chandrasekhara Aiyar, J., in his concurring opinion
stated thus:-
“A case of complete absence of a charge is covered by
Section 535, whereas an error or omission in a charge is
dealt with by Section 537. The consequences seem to be
slightly different. Where there is no charge, it is for the
court to determine whether there is any failure of justice.
But in the latter, where there is mere error or omission in
the charge, the court is also bound to have regard to the
fact whether the objection could and should have been
raised at an earlier stage in the proceedings.”
5 AIR 1930 PC 57
6 AIR 1927 PC 44
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Page 12
After so stating, the learned Judge opined that generally
in cases of omission to frame a charge is not per se fatal.
Eventually, he ruled thus:-
“Sections 34, 114 and 149 of the Indian Penal Code
provide for criminal liability viewed from different
angles as regards actual participants, accessories
and men actuated by a common object or a
common intention; and the charge is a rolled-up one
involving the direct liability and the constructive
liability without specifying who are directly liable
and who are sought to be made constructively
liable.
In such a situation, the absence of a charge
under one or other of the various heads of criminal
liability for the offence cannot be said to be fatal by
itself, and before a conviction for the substantive
offence, without a charge can be set aside, prejudice
will have to be made out. In most of the cases of
this kind, evidence is normally given from the
outset as to who was primarily responsible for the
act which brought about the offence and such
evidence is of course relevant.”
11. After 1973 Code came into existence, two-Judge Bench in
Annareddy Sambasiva Reddy v. State of A.P.7, relying on
the principles enunciated in Willie (William) Slaney (supra),
has opined that the legal position stated by the larger Bench
would hold good after enactment of Code of Criminal
Procedure, 1973 as well in the light of Sections 215, 216, 218,
7 (2009) 12 SCC 546
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Page 13
221 and 464 contained therein. Proceeding further, the Court
has ruled:-
“Is non-mentioning of Section 149 in Charge 4 and
Charge 5 a fundamental defect of an incurable
illegality that may warrant setting aside the
conviction and sentence of the appellants? We do
not think so. Non-framing of a charge under Section
149 IPC, on the face of the charges framed against
the appellants would not vitiate their conviction;
more so when the accused have failed to show any
prejudice in this regard. The present case is a case
where there is mere omission to mention Section
149 in Charges 4 and 5 which at the highest may
be considered as an irregularity and since the
appellants have failed to show any prejudice, their
conviction and sentence is not at all affected. Tenor
of cross-examination of PW 1 and PW 3 by the
defence also rules out any prejudice to them.”
12. Keeping in view the aforesaid exposition of law, we are
required to see whether in the present case, the tests are
satisfied. On a perusal of the evidence on record, we find the
facts and circumstances clearly bring out that there was an
unlawful assembly. Each of the accused person was very well
aware that they are tried for being a part of the assembly
which was armed with weapons and hence, it was unlawful.
On a close scrutiny of the evidence on record, it is difficult to
hold that any prejudice has been caused to the accused
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appellants. Thus, the said submission pales into
insignificance.
13. The next contention of the learned senior counsel for the
appellants is that the prosecution witnesses are chance
witnesses, for there is no occasion on their part to be at the
scene of crime. Dealing with the concept of chance witness, a
two-Judge Bench in Rana Pratap and others v. State of
Haryana8, has observed that:-
“We do not understand the expression “chance
witnesses”. Murders are not committed with
previous notice to witnesses, soliciting their
presence. If murder is committed in a dwelling
house, the inmates of the house are natural
witnesses. If murder is committed in a brothel,
prostitutes and paramours are natural witnesses. If
murder is committed on a street, only passersby
will be witnesses. Their evidence cannot be brushed
aside or viewed with suspicion on the ground that
they are mere “chance witnesses”. The expression
“chance witnesses” is borrowed from countries
where every man’s home is considered his castle
and every one must have an explanation for his
presence elsewhere or in another man’s castle. It is
a most unsuitable expression in a country whose
people are less formal and more casual. To discard
the evidence of street hawkers and street vendors
on the ground that they are “chance witnesses”,
even where murder is committed in a street, is to
abandon good sense and take too shallow a view of
the evidence.”
8 (1983) 3 SCC 327
14
Page 15
14. In Jarnail Singh v. State of Punjab9, a two-Judge
Bench opined that the evidence of a chance witness requires a
very cautious and close scrutiny and as such a witness must
adequately explain his presence at the place of occurrence and
if his presence at the place of incident remains doubtful, then
his version should be discarded.
15. In the case at hand, the prosecution has been able to
establish the presence of the witnesses at the place of
occurrence. The plea that there was no electricity and,
therefore, it would not have been possible on the part of the
witnesses to see the accused-appellants by lighting the
earthen mud lamp does not deserve commendation, for the
witnesses have categorically deposed that they were able to see
the accused persons and the participation of the
accused-appellants. Thus, despite the keen scrutiny of their
evidence, we are unable to put them in the category of
so-called ‘chance witnesses’ as has been nomenclatured by the
learned senior counsel for the appellants.
9 (2009) 9 SCC 719
15
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16. The next limb of submission of the learned senior
counsel for the appellants relates to acceptability and
reliability of the dying declaration recorded vide Ex. P-13. The
criticism is advanced on the foundation that it is absolutely
vague. It is urged by him that the dying declaration being
absolutely infirm, it cannot be placed reliance upon and once
the dying declaration is discarded, a serious dent is created in
the prosecution story. To appreciate the said submission, we
have carefully scrutinized the contents of the dying declaration
contained in Ex. P-13, which has been recorded by the
Additional Judicial Magistrate, First Class, PW-18. In his
testimony, he has categorically stated every aspect in detail
and nothing has been elicited in the cross-examination. At the
time of recording of the dying declaration, as the material
would show, the declarant was absolutely in a conscious state
and there is an endorsement in that regard by the treating
doctor. The submission that the dying declaration is
eminently vague is neither correct nor is it based on any
material on record. On the scanning of the dying declaration,
we find that he has named Vutukuru Laxmaiah, A-1, Rayapu
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Sreenivasalu, A-2, Rayapu Subbaiah, A-3, Meriga Ramanaiah,
A-5, Amburi Raja, A-8, Rayapu Ravi, A-9, and Rapayu
Siddaiah. Thus, in the absence of any kind of infirmity or
inherent contradiction or inconsistency or any facet that
would create a serious doubt on the dying declaration, we are
not inclined to discard it. It is well settled in law that
conviction undisputedly can be based on dying declaration, if
it is found totally reliable. In Mehiboobsab Abbasabi Nadaf
v. State of Karnataka10, while discarding multiple dying
declaration, the Court held thus:-
“Conviction can indisputably be based on a dying
declaration. But, before it can be acted upon, the
same must be held to have been rendered
voluntarily and truthfully. Consistency in the dying
declaration is the relevant factor for placing full
reliance thereupon. In this case, the deceased
herself had taken contradictory and inconsistent
stand in different dying declarations. They,
therefore, should not be accepted on their face
value. Caution, in this behalf, is required to be
applied.”
In Kashi Vishwanath v. State of Karnataka11, a
two-Judge Bench did not place reliance on the dying
10 (2007) 13 SCC 112
11 (2013) 7 SCC 162
17
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declaration as there were three dying declarations and they
showed certain glaring contradictions.
17. At this juncture, it is worthy to note that the High Court
has acquitted A-4, A-8 and A-9 on the foundation that they
have been falsely implicated. Learned senior counsel for the
appellants has contended that when the appellate court had
acquitted the said accused persons, there was no warrant to
sustain the conviction of other accused persons. On a perusal
of the judgment of appellate court, we find that the judgment
of acquittal has been reversed on the score that the names of
A-8 and A-9 do not find mention in the evidence of PWs 1 to 3.
On similar basis, A-4 has been acquitted. Suffice to mention
here because the High Court has acquitted A-4, A-8 and A-9,
that would not be a ground to discard the otherwise reliable
dying declaration, for the evidence in entirety vividly show the
involvement of the accused-appellants.
18. The next plank of submission of the learned counsel for
the appellant, Vutukuru Lakshmaiah, appellant in Criminal
Appeal No. 2047 of 2008, pertains to non-acceptance of plea of
alibi. As is manifest, both the Courts have elaborately dealt
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with it. As the judgment of the High Court would reveal, a
finding has been returned that there is no evidence to the
effect what is the distance between municipal office where the
Committee meeting was held and the place where the offence
had been committed; nothing has been brought on record to
show that it was impossible for one to reach the place of
offence; that the authenticity of the minutes book prepared
under the signatures obtained have not been maintained in
discharge of public function because the Water Committee
constituted is not a statutory Committee. That apart, the law
clearly stipulates how a plea of alibi is to be established. In
this context, we may profitably reproduce a few passages from
Binay Kumar Singh V. State of Bihar12:-
“22. We must bear in mind that an alibi is not an
exception (special or general) envisaged in the
Indian Penal Code or any other law. It is only a rule
of evidence recognised in Section 11 of the Evidence
Act that facts which are inconsistent with the fact
in issue are relevant. Illustration (a) given under the
provision is worth reproducing in this context:
“The question is whether A committed a crime
at Calcutta on a certain date; the fact that on
that date, A was at Lahore is relevant.”
12 (1997) 1 SCC 283
19
Page 20
23. The Latin word alibi means “elsewhere” and
that word is used for convenience when an accused
takes recourse to a defence line that when the
occurrence took place he was so far away from the
place of occurrence that it is extremely improbable
that he would have participated in the crime. It is a
basic law that in a criminal case, in which the
accused is alleged to have inflicted physical injury
to another person, the burden is on the prosecution
to prove that the accused was present at the scene
and has participated in the crime. The burden
would not be lessened by the mere fact that the
accused has adopted the defence of alibi. The plea
of the accused in such cases need be considered
only when the burden has been discharged by the
prosecution satisfactorily. But once the prosecution
succeeds in discharging the burden it is incumbent
on the accused, who adopts the plea of alibi, to
prove it with absolute certainty so as to exclude the
possibility of his presence at the place of
occurrence. When the presence of the accused at
the scene of occurrence has been established
satisfactorily by the prosecution through reliable
evidence, normally the court would be slow to
believe any counter-evidence to the effect that he
was elsewhere when the occurrence happened. But
if the evidence adduced by the accused is of such a
quality and of such a standard that the court may
entertain some reasonable doubt regarding his
presence at the scene when the occurrence took
place, the accused would, no doubt, be entitled to
the benefit of that reasonable doubt. For that
purpose, it would be a sound proposition to be laid
down that, in such circumstances, the burden on
the accused is rather heavy. It follows, therefore,
that strict proof is required for establishing the plea
of alibi.
[Emphasis supplied]
20
Page 21
The said principle has been reiterated in Gurpreet Singh
v. State of Haryana13, S.K. Sattar v. State of
Maharashtra14 and Jitender Kumar v. State of Haryana15.
19. In the instant case, the prosecution has been able to
clearly establish the presence of the accused-appellant A-1,
appellant in Criminal appeal No. 2047 of 2008, at the scene of
occurrence. The initial onus put on the prosecution having
been discharged, the burden shifts to the accused to establish
the plea of alibi with certainty. As is evident from the analysis
made by the High Court that the plea of alibi of the
accused-appellant, A-1, could not be accepted as his presence
has been proven. We find the said opinion of the High Court
is based on the material brought on record and hence, there is
no reason to differ with the same.
20. The last plank of submission of the learned senior
counsel for the appellants is that the appellants had no
intention to commit the murder of the deceased. It is also
submitted by him that when death has occurred three days
13 (2002) 8 SCC 18
14 (2010) 8 SCC 430
15 (2012) 6 SCC 204
21
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after the incident, it is demonstrable that there was no
intention on the part of the accused-appellants to kill him. To
appreciate the said submission, we have perused the injury
report. We find that there are five stab injuries at different
parts of the body i.e. near right axilla, below the right axilla,
over right hypochoncriam at mid clavicular line, over the
border of right scapula and over mid spinal region at the level
of 4th and 5th lumbar vertebra. The evidence on record shows
that the deceased was assaulted as he was a witness in
Velongini Raja’s murder case wherein the accused-appellant,
A-1, was an accused. There are cases where this Court has
converted offence from 302 IPC to 304 Part I IPC, regard being
had to the genesis of occurrence or the nature of injuries. It is
because one of the relevant factors to gather the intention is
the nature of injury inflicted on the deceased. In the instant
case, considering the nature of injuries and the previous
animosity, we are of the considered opinion that it is not a fit
case where the offence under Section 302 IPC should be
converted to Section 304 Part I IPC.
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21. Consequently, we do not perceive any merit in these
appeals and accordingly, the same stand dismissed.
.............................J.
[Dipak Misra]
............................J.
[N.V. Ramana]
New Delhi
April 24, 2015
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