Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2022 Supreme(SC) 1245

SUPREME COURT OF INDIA
SANJAY KISHAN KAUL, ABHAY S. OKA, JJ.
Kalicharan and Others – Appellants
Versus
State of Uttar Pradesh – Respondent
Criminal Appeal No. 122 of 2021
Decided On : 14-12-2022

Advocates:
Advocate Appeared:
For the Appellants : Rajesh Prasad Singh, Rakesh K. Khanna, Shefali Jain, Samant Singh, Aditya Pushkal Khanna, Ramya Khanna, Preeja Nair, Rajeev Singh.
For the Respondents: Vinod Diwakar, Sarvesh Singh Baghel, B.N. Dubey.

IMPORTANT POINTS
(1) Omission to frame a proper charge – Accused can properly defend himself provided he is clearly informed about nature of allegations against him before actual trial starts – Finding and sentence will be invalid only if in opinion of Court of appeal, error or omission has occasioned a failure of justice.
(2) Examination of accused – Questioning an accused under Section 313 Cr.P.C. is not an empty formality – Accused must be explained circumstances appearing in evidence against him so that accused can offer explanation.

Headnote:
(A) Criminal Procedure Code, 1973 – Sections 213, 215 and 464 – Omission to frame a proper charge – Accused can properly defend himself provided he is clearly informed about nature of allegations against him before actual trial starts – Unless particulars such as specific sections of penal statute as well as the time and place of commission of alleged offence are incorporated in charge, accused will not be in a position to properly defend himself – Error cannot be said to be material unless accused was misled by such error or omission and that such error or omission has caused a failure of justice – Finding and sentence will be invalid only if in opinion of Court of appeal, error or omission has occasioned a failure of justice – When Court of appeal is called upon to decide whether any failure of justice has been occasioned due to omission to frame a charge or error in charge, Court is duty bound to examine entire record of trial including all exhibited documents, depositions and statements of accused recorded under Section 313. (Paras 16, 17, 19 and 20)
(B) Criminal Procedure Code, 1973 – Section 313 – Indian Penal Code, 1860 – Sections 302/149, 307/149 and 148 – Arms Act, 1959 – Section 25 – Examination of accused – Questioning an accused under Section 313 Cr.P.C. is not an empty formality – Requirement of Section 313 Cr.P.C. is that accused must be explained circumstances appearing in evidence against him so that accused can offer explanation – After accused is questioned under Section 313, Cr.P.C., he is entitled to take a call on question of examining defence witnesses and leading other evidence – If accused is not explained important circumstances appearing against him in evidence on which his conviction is sought to be based, accused will not be in a position to explain the circumstances brought on record against him – He will not be able to properly defend himself – In facts of present case, by reason of omission to frame a proper charge in terms of Section 213 of Cr.P.C, and by reason of not putting important circumstances appearing in evidence in statement under Section 313 caused serious prejudice to accused which has occasioned failure of justice – It will be unfair to accused if they are called upon to answer circumstances appearing against them in evidence about incident which has taken place more than 22 years back – Accused persons acquitted. (Paras 22, 23, 24 and 27)
Facts of the case:
Mainly two issues arise in this appeal. The first issue is regarding the omission to frame a proper charge in accordance with Section 213 of Code of Criminal Procedure, 1973. Second issue is of the consequence of failure of Trial Judge to put material circumstances brought on record in the prosecution evidence to the accused in their statements under Section 313 of Cr.P.C.
Findings of Court:
Accused nos. 1,2 and 4 were in jail from 19th August 2019. Therefore, all of them had undergone a sentence for more than three years and four months. Accused no.2 was sentenced to undergo rigorous imprisonment for two years for offence punishable under Section 25 of the Arms Act which he has already undergone.
Result : Appeal allowed.

JUDGMENT :

ABHAY S. OKA, J.

FACTUAL DETAILS

1. Mainly two issues arise in this appeal. The first issue is regarding the omission to frame a proper charge in accordance with Section 213 of the Code of Criminal Procedure, 1973 (for short ‘Cr.P.C.’). The second issue is of the consequence of the failure of the learned Trial Judge to put material circumstances brought on record in the prosecution evidence to the accused in their statements under Section 313 of Cr.P.C. In short, this Court will have to examine whether there is a failure to comply with the requirements of Sections 213 and 313 of Cr.P.C. If the answer to the said question is in the affirmative, the next question will be whether prejudice has been caused to the accused due to failure to comply with the aforesaid provisions and whether it has caused a failure of justice.

2. The present appeal arises out of the judgment and order of the Fast Track Sessions Court at Bulandshahr. The Fast Track Court convicted the accused Bangali who is not before this Court for the offences punishable under Section 148 of the Indian Penal Code (for short, ‘IPC’) Section 302 of IPC as well as Section 307 read with Section 149 of IPC. The Fast Track Court convicted Kalicharan (accused no. 1), Yaad Prakash (accused no. 2), Diwan Singh (accused no. 3), and Smt. Shakuntala Devi (accused no. 4) for the offences punishable under Section 148 of IPC, Section 302 read with Section 149 of IPC and Section 307 read with Section 149 of IPC. Yaad Prakash (accused no. 2) was also convicted for the offence punishable under Section 25 of the Arms Act, 1959. Two separate appeals were preferred before the High Court of Judicature at Allahabad. One appeal was preferred by the accused Bangali and the other one was preferred by accused nos. 1 to 4. By the impugned judgment, the appeals were dismissed.

3. Accused Bangali did not challenge the impugned Judgment. Accused nos. 1 to 4 have preferred this appeal. We must note here that appellant no. 3 Diwan Singh (accused no. 3) raised a plea in the present appeal that on the date of the commission of the alleged offence, he was a juvenile in conflict with law. Accordingly, by the order dated 8th February 2021, this Court directed the learned District and Sessions Judge to hold an inquiry into the said plea. A finding was rendered by the learned District and Sessions Judge holding that on the date of commission of the offence, appellant no. 3 Diwan Singh (accused no. 3) was a juvenile in conflict with law. Therefore, by the order dated 1st July 2021, the conviction of appellant no. 3 was set aside and the present appeal to that extent was allowed.

4. We may note here that for the same incident, two separate First Information Reports (FIRs) were registered. The first FIR was against all the five accused for all the IPC offences and the second FIR was against appellant no. 2 (accused no. 2) for the offence punishable under Section 25 of the Arms Act.

5. The prosecution case, in brief, is that on 6th December 2000 at about 1.30 p.m. the informant Atar Singh (PW-1) was carrying soil for levelling a lane by his bullock cart. When he reached near the house of Shankar, accused no. 1 Kalicharan and his sons, Yaad Prakash (accused no. 2) and Diwan Singh (accused no. 3) resisted PW-1 and forced him to turn back his bullock cart. There was an altercation between accused nos. 1 to 3 and PW-1. The said three accused went back to their house and came back with weapons. The allegation is that the accused Bangali came with a chura (razor). Accused no. 1 was carrying a lathi. Accused no. 2 Yaad Prakash was carrying a country-made pistol of 315 bores. Accused no. 3 Diwan Singh and accused no. 4 Shakuntala Devi were carrying axe in their hands. Accused no. 4 Shakuntala Devi is the wife of accused no. 1 and mother of accused nos. 2 and 3. The allegation made in the FIR is that accused no. 2 fired four to five shots from his country-made pistol which hit deceased Harpal Singh who died on the