Supreme Court of India
KALICHARAN & ORSversusSTATE OF UTTAR PRADESH
- Citation
- 2022 INSC 1277
- Decided
- 14 December 2022
- Disposal
- Appeal(s) allowed
- Bench
- SANJAY KISHAN KAUL
Holding
The omission to frame a proper charge under Section 213 and the failure to disclose material evidence under Section 313 caused a failure of justice, warranting the setting aside of the convictions.
Summary
The case arose from a 2000 incident in which several accused were convicted of murder and related offences. The trial court framed charges alleging that the victim, Harpal Singh, was killed by bullet injuries from accused No.2, although the evidence showed he died from injuries inflicted by sharp weapons wielded by accused Nos.1,3 and 4. The court also failed to put this material circumstance before the accused during their Section 313 examination. The Supreme Court examined whether the omission to frame a proper charge under Section 213 CrPC and the failure to disclose material facts under Section 313 amounted to a failure of justice, and whether Sections 148 and 149 IPC could apply given the number of accused. It held that the mis‑framed charge and the defective Section 313 examination misled the accused and caused prejudice, and that the unlawful‑assembly provisions were inapplicable. Consequently, the convictions of accused Nos.1,2 and 4 were set aside and they were ordered to be released, while the appeal was allowed.
Issues considered
- The trial court’s charge did not comply with Section 213 of the CrPC by failing to state the manner of the offence for accused Nos.1,3 and 4.
- Whether the failure to put material circumstances of the prosecution evidence before the accused under Section 313 CrPC caused prejudice and a failure of justice.
- Whether Sections 148 and 149 of the IPC are applicable where only four persons (after acquittal of one) were involved.
- The effect of errors or omissions in charge framing under Sections 215 and 464 of the CrPC.
Legislation cited
- Arms Act, 1959s. 25
- Code of Criminal Procedure, 1973s. 211, s. 212, s. 213, s. 215, s. 313, s. 464
- Indian Penal Code, 1860s. 148, s. 149, s. 302, s. 307
Subjects
Criminal ProcedureSection 213 CrPCSection 313 CrPCCharge framingFailure of justiceUnlawful assemblyIPC 148IPC 149Conviction set aside
Judgment
56 [2022]REPORTS
SUPREME COURT 16 S.C.R. 56 [2022] 16 S.C.R.
A KALICHARAN & ORS.
v.
STATE OF UTTAR PRADESH
(Criminal Appeal No. 122 of 2021)
B DECEMBER 14, 2022
[SANJAY KISHAN KAUL AND ABHAY S. OKA, JJ.]
Code of Criminal Procedure, 1973 – ss.213, 313 – Failure to
comply with the requirements of s.213 and s.313 – The Fast track
Court convicted accused nos.1, 2, 3 and 4 for offences punishable
C
u/s. 302, 307 of the IPC along with other sections – Allegation that
accused no. 1,3,4 were armed with sharp edged weapons and
accused no.2 with pistol – It was also alleged that accused no. 2
murdered deceased (‘H’) by firing bullets from his pistol – Held: In
cross-examination PW-1 stated that he was not aware whether bullets
D hit victim (‘H’) or not – PW-2 also came out with the same version –
PW-3-doctor who performed post mortem stated that deceased
suffered injuries caused by the sharp-edged weapons – He did not
deposed any bullet injuries – In the instant case, not only that a
charge was not framed on the allegation that the death was caused
due to assault physically made by the accused, a misleading charge
E
was framed that death was caused due to bullet injuries sustained
by the bullets fired by the accused no.2 with a pistol in his hand –
‘H’ did not receive any bullet injury – Still, the said allegation was
put to all the accused in the examination u/s. 313 – Thus, not only
that the charge framed was misleading, but most material
F circumstance brought on record against the accused in the evidence
that ‘H’ died due to injuries caused by the attack made by accused
nos.1,3 and 4 was not put any of the accused – Thus, not only that
the charge was misleading but the accused had no opportunity to
explain the circumstance in which ‘H’ was allegedly killed which
was brought on record during the trial – Therefore, in the facts of
G
the case, by reason of omission to frame a proper charge in terms
of s. 213 of CrPC, and by reason of not putting important
circumstances appearing in the evidence in the statement u/s. 313
caused serious prejudice to the accused.
H
56
KALICHARAN & ORS. v. STATE OF UTTAR PRADESH 57
Code of Criminal Procedure, 1973 – Chapter XVII – A
Provisions regarding framing of charge – Held: The object of the
said provisions is obviously to make the accused aware of the
accusations against him on the basis of which the prosecution is
seeking to convict him – The object of the provisions regarding the
framing of charge is that accused should be in a position to
B
effectively defend himself – An accused can properly defend himself
provided he is clearly informed about the nature of the allegations
against him before the actual trial starts – That is why there are
elaborate provisions in CrPC in that behalf.
Code of Criminal Procedure, 1973 – Omission to frame a
charge or error in the charge – Power of Court of appeal – Held: C
When the 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 the charge, the Court is duty bound to examine
the entire record of the trial including all exhibited documents,
depositions and the statements of the accused recorded u/s. 313. D
Code of Criminal Procedure, 1973 – s.313 – Requirement of
– Held: The requirement of Section 313 CrPC is that the accused
must be explained the circumstances appearing in the evidence
against him so that accused can offer an explanation – After an
accused is questioned under Section 313 CrPC, he is entitled to E
take a call on the question of examining defence witnesses and
leading other evidence – If the accused is not explained the
important circumstances appearing against him in the evidence on
which his conviction is sought to be based, the accused will not be
in a position to explain the said circumstances brought on record
against him – He will not be able to properly defend himself. F
Jai Dev v. State of Punjab [1963] 3 SCR 489; Sharad
Birdhichand Sarda v. State of Maharashtra (1984) 4
SCC 116 : [1985] 1 SCR 88 – relied on.
Case Law Reference G
[1963] 3 SCR 489 relied on Para 22
[1985] 1 SCR 88 relied on Para 22
H
58 SUPREME COURT REPORTS [2022] 16 S.C.R.
A CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
122 of 2021.
From the Judgment and Order dated 24.05.2019 of the High Court
of Judicature at Allahabad in Criminal Appeal No. 2181 of 2003.
Rakesh K Khanna, Sr. Adv., Ms. Shefali Jain, Samant Singh, Aditya
B Pushkal Khanna, Ramya Khanna, Ms. Archana Midha, Ali Mushtaq
Newazish, Ms. Preeja Nair, Gurmeet Singh, Aditya Kumar Archiya,
Rajesh Prasad Singh, Advs. for the Appellants.
Vindo Diwakar, AAG, Sarvesh Singh Baghel, Pranav Kumar, B.N.
Dubey, Vishal Kumar Singh, Advs. for the Respondent.
C
The Judgment of the Court was delivered by
ABHAY S. OKA, J.
FACTUAL DETAILS
1. Mainly two issues arise in this appeal. The first issue is regarding
D
the omission to frame a proper charge in accordance with Section 213
of the Code of Criminal Procedure, 1973 (for short, ‘CrPC’). 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 CrPC. In short,
E this Court will have to examine whether there is a failure to comply with
the requirements of Sections 213 and 313 of CrPC. 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.
F 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),
G 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,
H 1959. Two separate appeals were preferred before the High Court of
KALICHARAN & ORS. v. STATE OF UTTAR PRADESH 59
[ABHAY S. OKA, J.]
Judicature at Allahabad. One appeal was preferred by the accused A
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 B
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 C
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 D
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 pm, the informant Atar Singh (PW-1) was carrying soil for E
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 F
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 G
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 spot. As a
result of this incident, the conflict started and the accused Bangali who
was armed with a razor attacked PW-1’s sister Rani, who succumbed
to the injuries caused by Bangali. Malkhan Singh, Ram Autar, Smt. Saroj, H
60 SUPREME COURT REPORTS [2022] 16 S.C.R.
A Smt. Rajni and Smt. Rani Devi came to rescue the deceased Rani.
However, the said persons were attacked by accused nos.1,3 and 4 with
weapons in their hands. These persons suffered injuries at the hands of
the said three accused. The accused nos. 2 and 4 also sustained injuries
in the fight. It must be noted here that though in the FIR, a case was
made out that deceased Harpal Singh died to bullet injuries caused by
B
bullets fired by accused no.2 Yaad Prakash, in the evidence, the
prosecution witnesses and in particular PW-1, deposed that due to
commotion caused by firing of shots by accused no.2, Harpal Singh fell
down and later on he was attacked by the other accused. The injuries
caused by sharp weapons led to his death. Apart from the evidence of
C recovery, the prosecution mainly relied upon the evidence of eye-
witnesses of PW-1 Attar Singh and PW-2 Malkhan Singh who were
allegedly injured at the hands of the accused.
SUBMISSIONS
6. Shri Rakesh Khanna, the learned senior counsel appearing for
D the appellants pointed out at the outset that one of the five accused,
Diwan Singh has been acquitted by this Court and therefore, only four
accused were involved in the incident. He, therefore, submitted that the
allegation of unlawful assembly made by the prosecution cannot be
accepted as there was no assembly of five or more persons. He, therefore,
E submitted that Sections 148 and 149 of IPC could not be invoked. He
invited our attention to the fourth charge framed against the accused.
He pointed out that the said charge alleges that accused no.2 Yaad Prakash
opened fire with a country-made revolver and the bullet injury sustained
by Harpal Singh caused his death. He pointed out that there was no
charge framed that the accused killed Harpal Singh after he fell down
F by using weapons in their hands. He submitted that as can be seen from
the judgments of the Sessions Court and High Court, it has been held
that Harpal Singh did not receive any firearm injury but he suffered
injuries due to the assault made by the accused nos.1,2 and 4 by weapons
in their hands. He submitted that the accused were misled due to the
G failure to frame proper charge. He submitted that though PW-1 and
PW-2 deposed that Harpal Singh is not the victim of bullet injury caused
by the firearm used by accused no.2, while recording statements of the
accused under Section 313, the only circumstance put to the accused is
that Harpal Singh died due to four to five shots fired by accused no.2,
Yaad Prakash. He pointed out that the circumstance that the accused
H
KALICHARAN & ORS. v. STATE OF UTTAR PRADESH 61
[ABHAY S. OKA, J.]
attacked Harpal Singh with the weapons in their hands which ultimately A
cause the death of Harpal Singh has not been put to the accused persons.
He submitted that a serious prejudice has been caused to the accused
due to the failure to frame proper charge and by failure to put material
circumstances to the accused in their statement under Section 313 of
CrPC. He, therefore, submitted that the conviction of the appellants
B
nos.1,2 and 4 is vitiated and they deserve to be acquitted. He also pointed
out that the applications for a grant of exemption from surrendering
made by the appellants were rejected by this Court by order dated 29th
July 2019. The custody certificates show that appellants nos.1,2 and 4
are in custody since 19th August 2019.
7. Shri Vinod Diwakar, learned Additional Advocate General for C
the State of Uttar Pradesh firstly submitted that the advocate for the
accused had cross-examined the material prosecution witnesses including
the two eye-witnesses on the prosecution case that Harpal Singh died
due to assault made by the appellant nos.1,2 and 4 by the weapons in
their hands. Therefore, there was no prejudice caused to them on account D
of the failure of the Court to frame a proper charge. Moreover, the
appellants were aware of the prosecution case as reflected in the evidence
of PW-1 and PW-2 and therefore, the failure of the learned Trial Judge
to put the circumstance to them in their statement under Section 313 is
not at all fatal. He submitted that both the Courts have believed the
testimony of PW-1 and PW-2. He submitted that injuries on the person E
of deceased Harpal Singh and injuries found on the injured persons
including PW-1 and PW-2 were consistent with the prosecution case.
He would, therefore, submit that no interference is called for in this
appeal as two persons have been brutally murdered and several others
were injured. F
CONSIDERATION OF SUBMISSIONS
APPLICABILITY OF SECTIONS 148 AND 149 OF IPC
8. We have given careful consideration to the submission. As
pointed out earlier, the present appellants were convicted for the offence G
punishable under Section 148 of IPC. All of them were convicted for the
offences punishable under Sections 302 and 307 with the aid of Section
149. The condition precedent for attracting offences punishable under
Sections 148 and 149 is that there should be an unlawful assembly as
provided in Section 141 of IPC. Section 141 of IPC defines “unlawful
H
62 SUPREME COURT REPORTS [2022] 16 S.C.R.
A assembly” to mean an assembly of five or more persons. In this case,
the four appellants and accused Bangali were named in the charge sheet.
As noted earlier, appellant no.3 - accused no.3 Diwan Singh was acquitted
by this Court by order dated 1st July 2021 by setting aside the conviction
as against him. Therefore, for considering the question whether there
was an unlawful assembly, appellant no.3 Diwan Singh will have to be
B
kept out of consideration. Then only four accused remain. Hence, the
charge under Sections 148 and 149 of IPC cannot be sustained.
EFFECT OF OMISSION TO FRAME PROPER CHARGE
AND OMISSION TO PUT RELEVANT CIRCUMSTANCES TO
ACCUSED IN THEIR STATEMENT UNDER SECTION 313
C OF CRPC.
9. Now, we turn to the charge framed by the Trial Court against
the accused. The only charges framed for the offence under Section
302 of IPC in relation to deceased Harpal Singh were the third and
fourth charges. The official English translation of the said two charges
D made by the High Court reads thus:
“Third : That on the above said date, time and place, you the
accused Yaad Prakash opened 45-5 gunshots with the
country pistol holding in your hand at the complainant Atar
Singh and his family members with intention to kill them
E that hit to the cousin brother of complainant namely Harpal
Singh. Thus, you the accused Yaadram committed the
murder of Harpal Singh. Thus, you have committed offense
punishable under Section 302 IPC which is within the cognizance
of this Court.
F Fourth : That on the above said date, time and place, you the
accused Yaad Prakash out of the accused persons, had
opened fire w ith country pistol at Harpal Singh in
furtherance of your common object and committed murder
of Harpal Singh on the spot which is punishable offense u/s
G 302/149/IPC and is within the cognizance of the Court.”
(emphasis added)
10. Thus, both the charges allege that appellant no.2 Yaad Prakash
(accused no.2) fired 4-5 gunshots with his country-made pistol which hit
Harpal Singh and therefore, Harpal Singh was killed by accused no.2.
H That is the third charge framed by the Trial Court. The fourth charge
KALICHARAN & ORS. v. STATE OF UTTAR PRADESH 63
[ABHAY S. OKA, J.]
was again on the basis of the allegation that it was the injury caused by A
bullets fired from the country-made pistol of accused no.2 which caused
the death of Harpal Singh. The fourth charge indicates that the other
accused were roped in only with the aid of Section 149 of IPC.
11. FIR was lodged on the basis of a written report made by PW-
1 Attar Singh which was reduced in writing by one Murari Lal, a police B
constable. The official translation of the material part of the allegations
in the said written report reads thus:
“....Thereafter, the accused persons went to their home and then
Kalicharan armed with lathi, his sons namely Yad Prakash armed
with country made pistol (315), Bangali armed with chhura and C
Diwan Singh armed with knife and Kalicharan’s wife Smt.
Shakuntala Devi armed with an axe came on the spot with common
object. On the noise, Harpal S/o Shriram, Smt. Rani Devi daughter
of Mahipal, Malkhan Singh, Ram Autar S/o Mahilal, Smt. Saroj
w/o Dhawal Singh, Smt. Rajni wife of Ved Prakash, Smt. Rani
Devi wife of Atar Singh, Shriram s/o Mewaram, Ved Prakash s/ D
o Mahipal, Satpal S/o Chhitar? Singh and Amar Singh s/o Shriram
of our family arrived there. Thereon, accused Kalicharan exhorted
saying, ‘DEKHTE KYA HO SALO KO JAAN SE MAAR
DAALO (what are you looking for, kill the bastard).” Thereupon,
accused Yad Prakash fired 4-5 shorts on us with his country E
made pistol with intention to kill, which hit my cousin Harpal
Singh. Due to it, Harpal Singh died on the spot….”
(emphasis added)
12. As noted earlier, only two eye-witnesses, namely, PW-1 Attar
Singh, the informant and PW-2 Malkhan Singh were examined by the F
prosecution. PW-1 in his deposition before the Court proved his written
statement on the basis of which FIR was registered. The English
translation of the material part of his examination-in-chief reads thus:
“Kalicharan had lathi in his hand, Yaad Prakash had country made
pistol, Bengali had dagger (chura). Diwan Singh had knife and G
Shakuntala Devi had axe. As they arrived, Kalicharan exhorted
them to open fire. Thereupon, accused Yaad Prakash opened 4-5
fires and hearing the noise of fire, my family members namely
Malkhan Singh, Ramavtar, Saroj, Rajni, my sister Rani Devi and
my wife Rani, Harpal Singh and others had come. When stampede
H
64 SUPREME COURT REPORTS [2022] 16 S.C.R.
A ensued due to fire then Harpal Singh fell down and the aforesaid
accused persons assaulted Harpal with their respective weapons
as a result of which Harpal died on spot.”
13. In the cross-examination, PW-1 stated that as accused no.2
had fired 4-5 gunshots, a stampede ensued. He stated that Harpal fell
B down but he was not aware whether bullets hit him or not. However, he
accepted that in the First Information Report, he had stated that the
gunshots fired by the accused no.2 hit Harpal Singh who died on the
spot.
14. PW-2 Malkhan Singh is the only other eyewitness. He also
C came out with the same version in his examination-in-chief. He stated in
the cross-examination that he was not aware whether Harpal Singh fell
down due to a bullet injury.
15. We have quoted the third charge above which is based on the
allegation in the FIR that Harpal Singh suffered injuries due to bullets
D fired by accused no.2 and that he died due to the bullet injuries. There is
no charge framed that the death of Harpal Singh was caused due to
assault made by accused nos.1,2 and 4 (present appellants). As noted
by both the Courts, PW 3 Dr. R.K. Daware who performed the post-
mortem on the body of deceased Harpal Singh stated that he suffered
injuries caused by sharp-edged weapons like knives and chura. Neither
E he deposed that there were bullet injuries nor did post-mortem notes
record such injuries.
16. There are provisions made in CrPC in Chapter XVII regarding
the framing of charge. The object of the said provisions is obviously to
make the accused aware of the accusations against him on the basis of
F which the prosecution is seeking to convict him. The object of the
provisions regarding the framing of charge is that accused should be in a
position to effectively defend himself. An accused can properly defend
himself provided he is clearly informed about the nature of the allegations
against him before the actual trial starts. That is why there are elaborate
G provisions in CrPC in that behalf. Sub-section (1) of Section 212 is material
for our consideration which reads thus:
“212. Particulars as to time, place and person.—(1) The
charge shall contain such particulars as to the time and place of
the alleged offence, and the person (if any) against whom, or the
thing (if any) in respect of which, it was committed, as are
H
KALICHARAN & ORS. v. STATE OF UTTAR PRADESH 65
[ABHAY S. OKA, J.]
reasonably sufficient to give the accused notice of the matter A
with which he is charged.
What is more important for this case is Section 213 which reads
thus:
“213. When manner of committing offence must be stated.—
When the nature of the case is such that the particulars mentioned B
in sections 211 and 212 do not give the accused sufficient notice
of the matter with which he is charged, the charge shall also contain
such particulars of the manner in which the alleged offence was
committed as will be sufficient for that purpose.”
17. The emphasis is on giving details of the manner of committing C
offence. Unless the particulars such as specific Sections of the penal
statute as well as the time and place of the commission of the alleged
offence are incorporated in the charge, the accused will not be in a
position to properly defend himself. Even these particulars may not be
enough in many cases to enable the accused to properly defend himself. D
That is why there is a specific requirement incorporated in Section 213
that if the particulars mentioned in Sections 211 and 212 do not give the
accused sufficient notice of the matter with which he is charged, the
charge shall also contain such particulars of the manner in which the
alleged offence was committed as will be sufficient for that purpose.
Illustration (e) to Section 213 provides that when the charge contains an E
allegation that ‘A’ is accused of the murder of ‘B’ at a given time and
place, the charge need not state the manner in which ‘A’ murdered ‘B’.
Going by the charge framed in this case, it is alleged therein that it was
accused no.2 who murdered deceased Harpal Singh by firing bullets
from his pistol. Though the case of the prosecution as can be seen from F
the evidence is that accused nos.1, 3 and 4 committed the murder of
Harpal Singh by using sharp weapons in their hand, there is no charge
framed against accused nos.1, 3 and 4 alleging that they murdered Harpal
Singh. As there is no charge framed against accused nos.1,3 and 4 of
committing the murder of Harpal Singh, Illustration (e) will not apply.
Therefore, it was necessary to frame a charge in terms of Section 213 G
by stating the manner of committing the offence of murder by accused
nos. 1,3 and 4.
18. There are two provisions in CrPC that deal with errors or
omissions in framing charge. The said provisions are Sections 215 and
464 which reads thus: H
66 SUPREME COURT REPORTS [2022] 16 S.C.R.
A “215. Effect of errors.— No error in stating either the offence
or the particulars required to be stated in the charge, and no
omission to state the offence or those particulars, shall be regarded
at any stage of the case as material, unless the accused was in
fact misled by such error or omission, and it has occasioned a
failure of justice.”
B
464. Effect of omission to frame, or absence of, or error in,
charge.—(1) No finding, sentence or order by a Court of
competent jurisdiction shall be deemed invalid merely on the ground
that no charge was framed or on the ground of any error, omission
or irregularity in the charge including any misjoinder of charges,
C unless, in the opinion of the Court of appeal, confirmation or
revision, a failure of justice has in fact been occasioned thereby.
(2) If the Court of appeal, confirmation or revision, is of opinion
that a failure of justice has in fact been occasioned, it may,—
D (a) in the case of an omission to frame a charge, order that a
charge be framed, and that the trial be recommended from the
point immediately after the framing of the charge;
(b) in the case of an error, omission or irregularity in the charge,
direct a new trial to be had upon a charge framed in whatever
E manner it thinks fit:
Provided that if the Court is of opinion that the facts of the case
are such that no valid charge could be preferred against the accused
in respect of the facts proved, it shall quash the conviction.”
19. Section 215 lays down when errors in the particulars required
F to be stated in the charge can be treated as material. It lays down that
the error cannot be said to be material unless the accused was misled by
such error or omission and that such error or omission has caused a
failure of justice. Section 464 deals with the effect of error or omission
made while framing charges on the finding and sentence of the competent
Court. The Section provides that the finding and sentence of the Court
G
cannot be invalid merely on the ground of error in framing charge or
omission in framing charge. The finding and sentence will be invalid only
if in the opinion of the Court of appeal, the error or omission has
occasioned a failure of justice.
H
KALICHARAN & ORS. v. STATE OF UTTAR PRADESH 67
[ABHAY S. OKA, J.]
20. When the Court of appeal is called upon to decide whether A
any failure of justice has been occasioned due to omission to frame a
charge or error in the charge, the Court is duty bound to examine the
entire record of the trial including all exhibited documents, depositions
and the statements of the accused recorded under Section 313.
21. At this stage, we must refer to the requirement of the B
examination of the accused under Section 313 of CrPC. Section 313 of
CrPC reads thus:-
“313. Power to examine the accused.—(1) In every inquiry
or trial, for the purpose of enabling the accused personally
to explain any circumstances appearing in the evidence C
against him, the Court—
(a) may at any stage, without previously warning the accused
put such questions to him as the Court considers necessary;
(b) shall, after the witnesses for the prosecution have been
examined and before he is called on for his defence, question D
him generally on the case:
Provided that in a summons-case, where the Court has dispensed
with the personal attendance of the accused, it may also dispense
with his examination under clause (b).
E
(2) No oath shall be administered to the accused when he is
examined under sub-section (1).
(3) The accused shall not render himself liable to punishment by
refusing to answer such questions, or by giving false answers to
them.
F
(4) The answers given by the accused may be taken into
consideration in such inquiry or trial, and put in evidence for or
against him in any other inquiry into, or trial for, any other offence
which such answers may tend to show he has committed.
[(5) The Court may take help of Prosecutor and Defence Counsel G
in preparing relevant questions which are to be put to the accused
and the Court may permit filing of written statement by the accused
as sufficient compliance of this section.]”
The questions in separate statements of the accused nos. 1 to 4
recorded by the Trial Court are almost identical. Question no.5 is the H
68 SUPREME COURT REPORTS [2022] 16 S.C.R.
A only question put to them about the evidence adduced against them on
the charge of murder of Harpal Singh. Question no.5 put to accused
no.3 reads thus:-
“Ques 5 – That it has come up in prosecution evidence that on
being exhorted by accused Kalicharan, accused Yaad Prakash
B fired 4-5 shots at complainant Atar Singh and his family
members with his country made pistol with intention to kill,
that hit complainant’s cousin Harpal Singh and he died on
the spot. What do you have to say in this regard?”
(emphasis added)
C 22. Such a case was not at all made out by the prosecution in the
evidence before the Court. The material brought on record by the
prosecution witnesses (PW-1 and PW-2) is to the effect that Harpal
Singh died due to injuries sustained as a result of an attack made by
accused nos.1,3 and 4 on him by sharp weapons. These material
D circumstances brought on record against the accused on which their
conviction is based were never put to the accused. What was put to the
accused was not the case made out by the prosecution in the evidence.
No questions are asked in the Section 313 statement about the post-
mortem of the body of Harpal Singh. It is not put to the witness that the
cause of death of Harpal Singh was due to haemorrhage and shock as a
E result of injuries caused by sharp weapons. Questioning an accused
under Section 313 CrPC is not an empty formality. The requirement of
Section 313 CrPC is that the accused must be explained the circumstances
appearing in the evidence against him so that accused can offer an
explanation. After an accused is questioned under Section 313 CrPC, he
F is entitled to take a call on the question of examining defence witnesses
and leading other evidence. If the accused is not explained the important
circumstances appearing against him in the evidence on which his
conviction is sought to be based, the accused will not be in a position to
explain the said circumstances brought on record against him. He will
not be able to properly defend himself. In paragraph 21 of the decision
G of this Court in the case of Jai Dev v. State of Punjab1, it was held
thus:-
“21. In support of his contention that the failure to put the relevant
point against the appellant Hari Singh would affect the final
1
H (1963) 3 SCR 489
KALICHARAN & ORS. v. STATE OF UTTAR PRADESH 69
[ABHAY S. OKA, J.]
conclusion of the High Court, Mr Anthony has relied on a decision A
of this Court in Hate Singh Bhagat Singh v. State of Madhya
Bharat [1951 SCC 1060 : AIR 1953 SC 468]. In that case, this
Court has no doubt referred to the fact that it was important to
put to the accused each material fact which is intended to be used
against him and to afford him a chance of explaining it if he can.
B
But these observations must be read in the light of the other
conclusions reached by this Court in that case. It would, we think,
be incorrect to suggest that these observations are intended to lay
down a general and inexorable rule that wherever it is found that
one of the points used against the accused person has not been
put to him, either the trial is vitiated or his conviction is rendered C
bad. The examination of the accused person under Section
342 is undoubtedly intended to give him an opportunity to
explain any circumstances appearing in the evidence against
him. In exercising its powers under Section 342, the court
must take care to put all relevant circumstances appearing
D
in the evidence to the accused person. It would not be
enough to put a few general and broad questions to the
accused, for by adopting such a course the accused may
not get opportunity of explaining all the relevant
circumstances. On the other hand, it would not be fair or right
that the court should put to the accused person detailed questions E
which may amount to his cross-examination. The ultimate test
in determining whether or not the accused has been fairly
examined under Section 342 would be to enquire whether,
having regard to all the questions put to him, he did get an
opportunity to say what he wanted to say in respect of
F
prosecution case against him. If it appears that the
examination of the accused person was defective and
thereby a prejudice has been caused to him, that would no
doubt be a serious infirmity. It is obvious that no general rule
can be laid down in regard to the manner in which the accused
person should be examined under Section 342. Broadly stated, G
however, the true position appears to be that passion for brevity
which may be content with asking a few omnibus general questions
is as much inconsistent with the requirements of Section 342 as
anxiety for thoroughness which may dictate an unduly detailed
H
70 SUPREME COURT REPORTS [2022] 16 S.C.R.
A and large number of questions which may amount to the cross-
examination of the accused person. Besides, in the present case,
as we have already shown, failure to put the specific point of
distance is really not very material.”
(emphasis added)
B In paragraph 145 of the well known decision of this Court in the
case of Sharad Birdhichand Sarda v. State of Maharashtra2, it was
held thus:
“145. It is not necessary for us to multiply authorities on this
point as this question now stands concluded by several decisions
C of this Court. In this view of the matter, the circumstances
which were not put to the appellant in his examination under
Section 313 of the Criminal Procedure Code, 1973 have to
be completely excluded from consideration.”
(emphasis added)
D
23. Now coming to the facts of the case, not only that a charge
was not framed on the allegation that the death of Harpal Singh was
caused due to assault physically made by the accused and in particular
accused nos. 1,2 and 4 by use of sharp weapons, a misleading charge
was framed that Harpal Singh died due to bullet injuries sustained by the
E bullets fired by the accused no.2 with a pistol in his hand. There is every
possibility of the accused getting misled due to the framing of such a
charge and omission to frame the correct charge. What is more serious
is that though the prosecution case made out during the trial clearly
indicated that the death of Harpal Singh was not caused due to any
F bullet injury, the circumstance put to all the accused under Section 313
was that the death of Harpal Singh was caused due to four to five shots
fired by accused no.2 by a country-made pistol. In fact, question no.5 in
the statement of the accused under Section 313 clearly records that the
bullets fired by accused no.2 hit Harpal Singh and he died on the spot.
As can be seen from the oral evidence, the post-mortem reports and
G examination of the doctor, Harpal Singh did not receive any bullet injury.
Still, the said allegation was put to all the accused in the examination
under Section 313. Thus, not only that the charge framed was misleading,
but most material circumstance brought on record against the accused
H 2
(1984) 4 SCC 116
KALICHARAN & ORS. v. STATE OF UTTAR PRADESH 71
[ABHAY S. OKA, J.]
in the evidence that Harpal Singh died due to injuries caused by the A
attack made by accused nos.1,3 and 4 was not put any of the accused.
Thus, not only that the charge was misleading but the accused had no
opportunity to explain the circumstance in which Harpal Singh was
allegedly killed which was brought on record during the trial. Therefore,
in the facts of the case, by reason of omission to frame a proper charge
B
in terms of Section 213 of CrPC, and by reason of not putting important
circumstances appearing in the evidence in the statement under Section
313 caused serious prejudice to the accused. The prejudice, in the facts
of the case, has occasioned a failure of justice.
24. Therefore, we considered whether the case can be remanded
for framing of a proper charge and for recording additional statements C
of the accused under Section 313. But the incident is of December 2000.
Therefore, it will be unfair to the accused if they are called upon to
answer the circumstances appearing against them in evidence about the
incident which has taken place more than 22 years back. In fact, such a
course will cause serious prejudice to the accused. D
25. In the circumstances, the charge of committing the murder of
Harpal Singh against accused nos. 1,2 and 4 cannot be substantiated.
The accused nos. 1,2 and 4 were convicted for the offences under Section
307 of IPC with the aid of Section 149. However, Section 149 will not
apply in this case. We may also note that the accused nos. 1,2 and 4 E
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 the
offence punishable under Section 25 of the Arms Act which he has
already undergone.
F
26. Accused Bangali has not preferred any appeal. We may note
here that the accused Bangali was convicted under Section 302 of IPC
for committing the murder of Rani without the aid of Section 149 of
IPC.
27. Hence, the appeal must succeed. We set aside the impugned G
judgments of the Sessions Court as well as the High Court to the extent
to which accused no.1 Kalicharan, accused no.2 Yaad Prakash and
accused no.4, Smt. Shakuntala Devi were convicted. They shall be
forthwith set at liberty unless they are required to be detained in
H
72 SUPREME COURT REPORTS [2022] 16 S.C.R.
A connection with any other offence. As noted earlier, accused no.3 Diwan
Singh has already been acquitted under the order dated 1st July 2021.
28. The appeal is, accordingly, allowed.
B Ankit Gyan Appeal allowed.
C
D
E
F
G
H
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