2006 Supreme(SC) 603

2006(5) Supreme 642
SUPREME COURT OF INDIA
(From Andhra Pradesh High Court)
S.B. Sinha and Dalveer Bhandari, JJ.
Sabbi Mallesu & Ors. — Appellants
versus
State of A.P. — Respondent
Criminal Appeal No. 784 of 2004
With
Criminal Appeal No. 773 of 2006
(Arising out of SLP (Crl.) No. 4438/2004)
Decided on 12-7-2006
Counsel for the Parties :
For the Appellants : Y. Raja Gopala Rao and Y. Ramesh, Advocates.
For the Respondent : P. Vinay Kumar and Mrs. D. Bharathi Reddy, Advocates.

IMPORTANT POINT
Though Court had power to alter the charges but it is obligatory to bring it to notice of accused and explain same to them.

Headnote:(i) Indian Penal Code, 1860 — Section 302 — Four appellants convicted under — 39 persons were put on trial on charges u/s 147, 148, 302, 324, 323, 341, 120-B and 506(2) IPC although only fifteen persons were named in FIR — All accused were acquitted of charge u/s 147 IPC — There witnesses were examined eye witnesses of whom PW1 was the important — No charge u/s 302/149 IPC was framed against appellants — Sessions Judge, without altering the charge proceeded to convict six accused u/s 302/149 IPC and all other accused were acquitted of charges — High Court in appeal acquitted two more accused following the logic of trial Court — Appeal by State against acquittal and by accused convicted — In FIR PW1 did not disclose any overt act played by other accused apart from appellants No. 1 and 2 — PW1 made improvements during trial — No case was made out for interference with judgment of acquittal against respondent — Conviction of appellants 3 and 4 was unsustainable as they were entitled to benefit of doubt as no overt act had been attributed to them — Conviction of appellants 1 and 2 whose names were given in FIR with specific role of assault on two deceased made, was liable to be sustained.

       Held : Unfortunately, both the learned Sessions Judge as also the High Court failed to attach due importance to the fact that in the First Information Report, PW-1 did not disclose any overt acts played by the other accused persons apart from appellant Nos. 1 and 2 herein. If the statements of the said witnesses are to be believed, he was himself injured in the occurrence and, therefore, it was expected of him at least to state as to who amongst accused caused the said injury. Even injury on his person was not proved. We have noticed herein before that no over act against any person was at all attributed in regard to the death of Karanam Chandraiah.(Para 13)

       The learned Sessions Judge as also the High Court unfortunately failed to notice that in a case of this nature where a large number of people allegedly took part in commission of an offence, some by-standers’ may being falsely implicated therein cannot be ruled out.(Para 14)

       Submission of the learned counsel appearing on behalf of the State is that the First Information Report need not contain all the details may be correct but in a case of this nature it is expected that incident would be narrated in some details as otherwise it will be difficult for the trial Judge to find out the truth particularly having regard to the fact that both P.W.1 and P.W.2 made omnibus statements. It is beyond any cavil that in his deposition before the Court, P.W.1 made improvements. He not only attributed overt acts to those who were allegedly responsible for causing death of deceased No. 1 but also who had allegedly caused the death of deceased No. 2. If he was an eye witness and had seen the entire occurrence from a close proximity and indeed suffered an injury himself, we fail to understand as to why the First Information Report would lack the details of the offence involving all the accused persons.(Para 15)

       Having considered the materials on record and keeping in view the submissions made at the Bar, we are of the opinion that not only no case has, thus, been made out to interfere with the judgment of acquittal passed as against the respondents in Criminal Appeal arising out of SLP (Crl.) No. 4438/2004 but also the judgment of conviction and sentence passed against the appellants Nos. 3 and 4 in Crl. Appeal No. 784/2004 herein are not sustainable as they are entitled to be given benefit of doubt as no overt act had been attributed as against them.(Para 17)

       We are, however, of the opinion that the names of appellant Nos. 1 and 2 only having been mentioned in the First Information Report and the statements of P.W.1 and P.W.2 in relation to the role played by them having been found corroboration from the medical evidence, the judgment of conviction and sentence as against them must be sustained.(Para 20)

       (ii) Criminal Procedure Code, 1973 — Section 246 — Conviction of accused u/s 302/149 IPC — No charge u/s 302/149 IPC was framed and charge only u/s 302 IPC was framed — Court had power to alter the charges but it was obligatory to bring it to notice of accused and explain the same to them — Same having not been done, requirement of Section 246 Cr.P.C. could not be said stood complied with.(Para 18)