Code of Criminal Procedure, 1973 – Chapter XVII – ss.211,
212 and 213 – Defective framing of charges – Acquittal of accused persons – Interference with, if permissible – Three persons died and five persons were injured allegedly in an attack by 17 persons – Sessions Court convicted 4 accused, while remaining 13 accused persons were acquitted – State appeals against acquittal of various accused, dismissed by High Court – On appeal, held: In the case on hand where three persons died, the charge u/s.302 should have been framed against specifically named accused with respect to each of the deceased – However, no clear charges were framed – Accused are entitled in law to know what is the charge on which they are put to trial – Further, since the prosecution invoked s.149, charges should have been framed specifying which of the accused were sought to be punished for which offence with the aid of s.149,IPC – Sessions Court did not record clear findings as to the existence of an unlawful assembly – Nor was there any clear finding regarding the common object of the assembly – High Court failed to take note of such defects in framing of charges – However, it would not be justified to reverse the acquittal of accused persons in the case on hand inter alia on the grounds that the framing of charges is erroneous – Normally, consequence thereof should be a fresh trial, but such a course of action after a lapse of 26 years of the occurrence of the crime would not serve any useful purpose as some of the accused died in the interregnum – Victims of the crime in this case are required to be compensated by the award of public law damages – Families of each of the deceased be paid by the State an amount of Rs. 25,00,000/- each and the injured witnesses, if still surviving, otherwise their families be paid Rs.10,00,000/each – Penal Code, 1860 – ss.302, 149, 141, 143, 146-148, 307,
323 and 326 – Bombay Police Act – s.135 – Constitution of India – Art.21 – Evidence Act, 1872 – s.33 - Doctrine of vicarious liability. Penal Code, 1860 – s.141 – Unlawful assembly – Elements of – Discussed.
Penal Code, 1860 – s.149 – Scope and amplitude of – Discussed.
Penal Code, 1860– ss.146-148 – Offences under, distinction between– Discussed.
Code of Civil Procedure, 1908 – ‘Issues’ framed under, different from ‘Charges’ framed under CrPC, 1973 – Discussed – Code of Criminal Procedure, 1973.
Disposing of the appeals, the Court
HELD: 1.1 Sections 211 to 213 of the Code of Criminal Procedure, 1973 deal with the particulars which are required to be contained in a charge in a criminal trial. These provisions are made to ensure a fair procedure by which a person accused of an offence should be tried– a procedure in compliance with the requirement of the mandate of Article 21 of the Constitution of India. The accused are entitled in law to know with precision what is the charge on which they are put to trial. [Para 15][1061A-B]
1.2 In the case on hand where three persons died and five persons were injured allegedly in an attack by all the accused, the charge under Section 302 IPC must have been framed on three counts against specifically named accused with respect to each of the deceased. Causing death to each one of the three persons or causing injury to each one of the five persons is a distinct offence. It is also necessary that the court should record a specific finding as to the guilt of the accused under Section 302 IPC qua the death of a named deceased. If different accused are prosecuted for causing the death of the three different deceased, then distinct charges should have been framed specifying which of the accused are charged for the offence of causing the death of which one of the three different deceased. None of the accused is eventually found vicariously guilty of the offence under Section
302 IPC read with Section 149 IPC. An erroneous or irregular or even absence of a specific charge shall not render the conviction recorded by a court invalid unless the appellate court comes to a conclusion that failure of justice has in fact been occasioned thereby. [Paras 13, 16 and 18][1061-E-H; 1062-A, DE]
1.3 In cases where a large number of accused constituting an ‘unlawful assembly’ are alleged to have attacked and killed one or more persons, it is not necessary that each of the accused should inflict fatal injuries or any injury at all. Invocation of Section
149 IPC is essential in such cases for punishing the members of such unlawful assemblies on the ground of vicarious liability even though they are not accused of having inflicted fatal injuries in appropriate cases if the evidence on record justifies. The mere presence of an accused in such an ‘unlawful assembly’ is sufficient to render him vicariously liable under Section 149 IPC for causing the death of the victim of the attack provided that the accused are told that they have to face a charge rendering them vicariously liable under Section 149 IPC for the offence punishable under Section 302 IPC. Failure to appropriately invoke and apply Section
149 enables large number of offenders to get away with the crime. [Para 19][1062-E-G]
1.4 Sections 141, 146 and 148 IPC create distinct offences. Section 149 only creates a vicarious liability. However, Sections 146, 148 and 149 contain certain legislative declarations based on the doctrine of vicarious liability. To be liable for punishment under any one of the provisions, the fundamental requirement is the existence of an unlawful assembly as defined under Section
141 made punishable under Section 143 IPC. The concept of an unlawful assembly has two elements- (i) The assembly should consist of at least five persons; (ii) They should have a common object to commit an offence or achieve any one of the objects enumerated therein. [Paras 27, 28][1066-D-G]
1.5 For recording a conclusion, that a person is (i) guilty of any one of the offences under Sections 143, 146 or 148 or (ii) vicariously liable under Section 149 for some other offence, it must first be proved that such person is a member of an ‘unlawful assembly’ consisting of not less than five persons irrespective of the fact whether the identity of each one of the 5 persons is proved or not. If that fact is proved, the next step of inquiry is whether the common object of the unlawful assembly is one of the 5 enumerated objects specified under Section 141 IPC. The common object of assembly is normally to be gathered from the circumstances of each case such as the time and place of the gathering of the assembly, the conduct of the gathering as distinguished from the conduct of the individual members are indicative of the common object of the gathering. Assessing the common object of an assembly only on the basis of the overt acts committed by such individual members of the assembly, is impermissible. For example, if more than five people gather together and attack another person with deadly weapons eventually resulting in the death of the victim, it is wrong to conclude that one or some of the members of such assembly did not share the common object with those who had inflicted the fatal injuries (as proved by medical evidence); merely on the ground that the injuries inflicted by such members are relatively less serious and non fatal. [Paras 29, 30][1066-G-H; 1067-A-D]
2. The Sessions Court purported to frame ‘issues’– a practice statutorily mandated under the Code of Civil Procedure. But, it is informed that in the State of Gujarat the practice of framing “issues” is prevalent even in the trial of a criminal case. “Issues” are not the same as “charges”. They are not framed prior to the commencement of trial. They are only ‘identified’ at the time of writing the judgment. Issue Nos.2 and 4 framed by the Sessions Judge are with respect to offence of unlawful assembly, rioting and the vicarious liability under the IPC. Issue No. 2 makes a reference to all the accused put to trial in the context of the offences of the unlawful assembly and rioting. Issue No. 4 does not make a reference to “all the accused”, in the context of the offences under Sections 302 read with Section 149 IPC. Since the prosecution invoked Section 149, charges should have been framed specifying which of the accused were sought to be punished for which offence with the aid of Section 149. From the judgment of the Sessions Court, there is no clear findings recorded (i) as to the existence of an unlawful assembly, (ii) if it existed, how many (number of the members) were present in the unlawful assembly. There appears to be an accusation of the commission of the offence under Section 143 IPC. There was no finding whether the assembly consisted of 17 members or less (number) and which of the 17 accused were present (the identity) in the assembly. Nor was there any clear finding regarding the common object of the assembly. Consequentially, there was no finding recorded by the Sessions Court whether an offence of unlawful assembly punishable under Section 143 was committed by all or some of the accused. The Trial Court recorded the conviction under Section 148 IPC against 4 accused. The record is not very clear whether the accused were told they were to face a charge of being members of the unlawful assembly, whose common object was to commit murder of the three deceased. [Paras 33, 36][1067-H; 1068-A-B, H; 1069-A-G]
3. It would not be justified to reverse the finding of acquittal in the case on hand on the grounds that (i) the framing of charges was egregiously erroneous and not in accordance with the provisions of the CrPC; or (ii) the courts below failed to record appropriate findings with respect to the various offences which the accused are said to have committed; or (iii) the 1st appellate court’s reasoning in declining to reverse a finding of acquittal recorded by the trial court was defective. For all the abovementioned reasons, a conclusion should have been recorded that there is a failure of justice in the case on hand looked at from the point of view of either the victims or even from the point of view of the convicted accused. The most normal consequence thereafter should have been to order a fresh trial, but such a course of action after a lapse of 26 years of the occurrence of the crime, would not serve any useful purpose because some of the accused have died in the interregnum. The families of each of the deceased be compensated by the award of public law damages and should be paid by the State an amount of Rs. 25,00,000/each and the injured witnesses, if still surviving, otherwise their families are required to be paid an amount of Rs.10,00,000/- each. [Paras 39, 43, 44][1071-E-G; 1073-E-G; 1074-A-B] Shambhu Nath Singh & Others v. State of Bihar AIR 1960 SC 725; Esher Singh v. State of Andhra Pradesh (2004) 11 SCC 585 : [2004] 2 SCR 1180; Masalti v. State of U.P. AIR 1965 SC 202 : [1964] SCR 133; Dalbir Singh v. State of U.P. (2004) 5 SCC 334; Shivaji Sahabrao Bobade & Anr. v. State of Maharashtra (1973) 2 SCC 793 : [1974] 1 SCR 489; Nilabati Behera (Smt) alias Lalita Behera (Through the Supreme Court Legal Aid Committee) v. State of Orissa & Others (1993)
2 SCC 746 : [1993] 2 SCR 581– relied on.
Sheo Mahadeo Singh v. State of Bihar (1970) 3 SCC 46; Lalji v. State of Uttar Pradesh (1989) 1 SCC 437 : [1989] 1 SCR 130; Bala Seetharamaiah v. Perike S. Rao (2004) 4 SCC 557 : [2004] 3 SCR 28; Ram Gope v. State of Bihar AIR 1969 SC 689 : [1969] SCR 558; Yeshwant & Others v. State of Maharashtra (1972) 3 SCC 639 : [1973] 1 SCR 291; Manga alias Man Singh v. State of Uttarakhand (2013) 7 SCC 629 : [2013] 3 SCR 175; Dalip Singh and Ors. v. State of Punjab AIR 1953 SC 364 : [1955] SCR 393; Sundar Singh v. State AIR 1955 All 232(FB); Sabir v. Queen Empress (1894) ILR 22 Cal 276; In re Choitano Ranto and Others AIR 1916 Mad 788 – referred to.
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.
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