Penal Code, 1860 – s.302 r/w s.34 – Case based on circumstantial evidence – Marriage of ‘S’ was solemnised with one ‘LM’ in 2006 – FIR was lodged in 2009 by CW-1 that ‘S’ has been killed by the appellants (mother-in-law and sister-in-law of ‘S’) along with ‘LM’ and others – Trial Court convicted the appellants and ‘LM’ for having conspired the murder of ‘S’ with accused nos.4 and 5, however accused nos.6 to 8 were acquitted – High Court acquitted ‘LM’ but maintained sentence of the appellants – On appeal, held: Entire prosecution proceeded on the basis that accused nos.4 and
5 were the actual assailants – Accused nos.4 and 5 were never apprehended – Charge of conspiracy against the appellants with accused nos.4 and 5 has not found favour either with the Trial Court or with the High Court – Conviction of the appellants is probably on the basis of the lack of explanation of the injuries suffered on the person of the deceased – However, from the statement of PW-20, tenant living on the ground floor of the house in which the appellants and the deceased were residing, it is found that there were five persons who were performing Puja and two of them were Swamis – Chain of circumstances has not been completed so as to lead to only one conclusion that the appellants and the appellants alone were responsible for committing the crime – Since the prosecution story proceeded on the basis that the role of the appellants is that of conspirators but having failed to prove the charge of conspiracy, the appellants could not be convicted for the offence u/s.302 – Such conviction has caused not only prejudice but also failure of justice, therefore, conviction cannot be sustained – Appellants are acquitted of the charges levelled against them. Code of Criminal Procedure, 1973 – Omission to frame charges and consequent prejudice to the accused – Discussed. Allowing the appeal, the Court
HELD: 1.1 The prosecution case is based upon testimony of PW-19 and PW-20 who are the tenants and living on the ground floor of the house in which the appellants and the deceased were residing. PW-19 in his examination-in-chief deposed that accused No. 2 sprinkled water on the face of deceased when he along with his wife went to their house on the asking of the appellants. In cross-examination, the question asked is about enmity with the husband of the deceased in respect of payment of rent. [Para 11] [952-F]
1.2 The statement of PW-20, in fact, proves the presence of two other persons on the date of occurrence and that there were Swamis performing the Puja. Therefore, the findings recorded by the High Court that Investigating Officer botched up the investigation against the appellants are based upon surmises even when the prosecution witness has deposed to this effect. The entire prosecution proceeded on the basis that accused Nos. 4 and 5 were the actual assailants. Accused Nos. 4 and 5 were never apprehended. The charge of conspiracy against the appellants with accused Nos. 4 and 5 has not found favour either with the Trial Court or with the High Court. [Paras 13-14] [953-C-D]
1.3 The conviction of the appellants is probably on the basis of the lack of explanation of the injuries suffered on the person of the deceased. However, it is found from the statement of PW-20 that there were five persons who were performing Puja and two of them were Swamis. Thus, the appellants cannot be held guilty for the offence punishable under Section 302 read with Section
34 IPC. The chain of circumstances has not been completed so as to lead only one conclusion that the appellants and the appellants alone were responsible for committing the crime. The charge No. 3 against the appellants was that accused Nos. 4 and
5 have conspired with the appellants by receiving money. However, both the Courts have found the charge of conspiracy as not proved. [Paras 15, 17] [953-E-F; 954-D]
1.4 The question as to whether omission to frame an alternative charge under Section 302 IPC is an illegality that cuts at the root of the conviction and makes not invalid or whether it is a curable irregularity, has been examined by Supreme Court from time to time. Since the prosecution story proceeded on the basis that the role of the appellants is that of conspirators but having failed to prove the charge of conspiracy, the appellants could not be convicted for the offence under Section 302 IPC. Such conviction has caused not only prejudice but also failure of justice, therefore, conviction cannot be sustained. The appellants are acquitted of the charges levelled against them. They shall be released forthwith, if not required in any other case. [Paras 18, 20, 21] [954-E; 955-C]
Willie (William) Slaney v. The State of Madhya Pradesh AIR 1956 SC 116 : [1955] SCR 1140 – followed. Mulakh Raj v. Satish Kumar (1992) 3 SCC 43 :
[1992] 2 SCR 484; Main Pal v. State of Haryana (2010) 10 SCC 130 : [ 2010] 11 SCR 336 – relied on.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
This page is for informational and research purposes only and does not constitute legal advice. Consult a qualified advocate for advice specific to your situation.