MOHAN SINGHversusSTATE OF BIHAR

                    [2011] 12 S.C.R. 327


                      MOHAN SINGH                              A
                             v.
                      STATE OF BIHAR
              (Criminal Appeal No.663 of 2010)
                     AUGUST 26, 2011
                                                               B
[ASOK KUMAR GANGULY AND DEEPAK VERMA, JJ.]

    Penal Code, 1860:

      s.302 - Murder - Threatening calls received by the c
informant for extortion of money and threat to his brother's life
allegedly made by the appellant - Informant identified the
voice as that ofthe appellant - Informant's brother and father
shot at resulting in death of his brother- Trial court convicting
appellant for conspiracy of murder and extortion of money - 0
High Court upheld the same - On appeal, held: Courts below
considered the evidence of the two investigating officers, apart
from the evidence of informant and the other witnesses and
the materials on record before coming to the conclusion that
appellant was guilty - The fact that the name of registered E
allottees of the SIM cards of these mobile phones could not
be traced was not relevant' in this connection - Evidence of
informant that he knew the voice of the appellant was not
challenged - Evidence of investigating officer that eight calls
were recorded between the mobiles of the appellant and l1is
conspirator was also not challenged - Substantive evidence F
was placed to prove the meeting of minds and criminal
conspiracy between the appellant and conspirator about the
murder of the victim - There is no reason to interfere with the
concurrent finding - Conviction upheld.
                                                               G
    Appeal:

   Concurrent findings of courts below - Appeal before
Supreme Court - Scope of interference - Held: After a
                            327                                H
    328      SUPREME COURT REPORTS                (2011) 12 S.C.R.


A concurrent finding by two courts normally the Supreme Court
  in an appeal against such finding is slow and circumspect to
  upset such finding unless Supreme Court finds the finding to
  be perverse.

          Plea - Fresh plea - Plea relating to errors in framing of
8
    chargelmisjoinder of charge raised before the Supreme Court
    for the first time - Held: Such plea is not normally considered
    by the Supreme Court.

          Code of Criminal Procedure, 1973:
c
          ss.211 to 215 - If the ingredients of the section charged
    with are obvious and implicit, conviction under such head can
    be sustained irrespective of the fact whether the said section
    has been mentioned or not in the charge - Omission or defect
0   in framing of charge would not disable the criminal court from
    convicting the accused for the offence which is found to have
    been proved on the evidence on record.

        ss.211 to 215 - Framing a charge - Purpose of- Held:
  Is to give intimation to the accused of clear, unambiguous and
E precise notice of the nature of accusation that the accused is
  called upon to meet in the course of a trial - In the instant case
  from the evidence led by the prosecution the charge of murder
  was brought home against the appellant - The accused had
  clear notice of what was alleged against him and he had
F adequate opportunity of defending himself against what was
  alleged against him - No prejudice was caused to him nor
  was there any failure of justice for non-mentioning of s. 302 !PC
  in the charge since all the ingredients of the offence were
  disclosed - In the charge it was clearly mentioned that the
G accused has committed the murder - By mentioning that the
  accused has committed the murder all the ingredients of the
  charge were mentioned and the requirement of s.211, sub-
  section (2) was complied with.

          The prosecution case was that the informant received
H
         MOHAN SINGH v. STATE OF BIHAR                   329

phone calls from the appellant few days prior to the A
incident of murder demanding RS.50,000/- and
threatening him that non fulfillment of the demand of
money would result in dire consequences. On the fateful
day, informant received a call from his driver to the 'effect
that the informant's brother and father were shot at while B
they were in their shop and that both were taken to
hospital. The brother of the informant died. The informant
was told that the shots were fired by one 'LS' and 'NS'.
The informant lodged complaint wherein he stated that
his family knew the appellant and 'LS' from an earlier c
incident in 2004, when on the occasion of Durga Puja,
similar demand was made and a complaint was made
about that incident at the police station and that he
identified the voice of the telephone caller as that of the
appellant. These statements were supported by the
                                                              0
informant's father and the other brother.

     The trial court found the appellant guilty. On appeal,
the High Court upheld the conviction on the ground that
the informant himself and his family knew the appellant
and 'LS' from before.                                       E
      In the instant appeal, it was contended for the
appellant that he cannot be convicted under Section 120-
B, IPC and given the sentence of rigorous imprisonment
for life in view of the charges framed against the appella.nt.   F

    Dismissing the appeal, the Court

     HELD: 1. Admittedly, no complaint of any prejudice
was raised by the appellant either before the trial court
or in the High Court or in the course of examination under G
Section 313 Cr.P.C. These points were raised before this
Court for the first time. In a case where points relating to
errors in framing of charge or even misjoinder of charge
are raised before this Court for the first time, such
grievances are not normally considered by this Court. The H
    330    SUPREME COURT REPORTS              [2011] 12 S.C.R.

A purpose of framing a charge is to give intimation to the
  accused of clear, unambiguous and precise notice of the
  nature of accusation that the accused is called upon to
  meet in the course of a trial. There is no doubt that in the
  instant case from the evidence led by the prosecution the
B charge of murder was brought home against the
  appellant. The accused had clear notice of what was
  alleged against him and he had adequate opportunity of
  defending himself against what was alleged against him.
  No prejudice was caused to him for non-mentioning of
c Section 302 l.P.C. in the charge since all the ingredients
  of the offence were disclosed. The appellant had full
  notice and had ample opportunity to defend himself
  against the same and at no earlier stage of the
  proceedings, the appellant had raised any grievance. An
  overall consideration of the facts and circumstances of
0
  this case would show that the appellant did not suffer any
  prejudice nor was there any failure of justice. In the
  charge it was clearly mentioned that the accused-
  appellant has committed the murder. By mentioning that
E the accused has committed the murder all the ingredients
  of the charge were mentioned and the requirement of
  Section 211, sub-section (2) was complied with. [Paras
  13, 14, 16, 23, 25, 28, 29] [338-G-H; 339-A; 339-F; 343-F;
  344-E; 345-B-E]

F     . V. C. Shukla v. State Through C.8.1. 1980 Suppl SCC 92;
    K. Prema S. Rao and another v. Yadla Srinivasa Rao and
    others (2003) 1 SCC 217: 2002 (3) Suppl. SCR 339; Dalbir
    Singh v. State of U.P. (2004) 5 SCC 334 - followed.
G       Willie (William) Slaney v. State of Madhya Pradesh
    (1955) 2 SCR 1140; Tulsi Ram and others v. State of Uttar
    Pradesh AIR 1963 SC 666: 1963 Suppl. SCR 382; State of
    Andhra Pradesh v. Cheemalapati Ganeswara Rao and
    another AIR 1963 SC 1850: 1964 SCR 297; Rawalpenta
    Venkalu and another v. The State of Hyderabad AIR 1956 SC
H
         MOHAN SINGH v. STATE OF BIHAR                331


171; State of Uttar Pradesh v. Paras Nath Singh (2009) 6    A
SCC 372: 2009 (8) SCR 85; Annareddy Sambasiva Reddy
and others v. State of Andhra Pradesh (2009) 12 SCC 546:
2009 (6) SCR 755 - relied on.
    Manga/ Singh and others v. State of Madhya Bharat AIR
                                                            8
1957 SC 199 - referred to.
     2. The appellant was in jail at the time of the
commission of the offence. His involvement in the whole
episode was argued for only on the evidence of PW.4
who is said to have identified his voice on the basis of c
some telephone calls. These are essentially questions of
fact and after a concurrent finding by two courts normally
this Court in an appeal against such finding is slow and
circumspect to upset such finding unless this Court finds
the finding to be perverse. However, on the legal issue o
one thing is clear that identification by voice has to be
considered by this Court carefully and on this aspect
some guidelines have been laid down by this Court in the
case of *Kirpal Singh. PW.4 in his evidence clearly stated
that the appellant gave him a phone call asking for money E
on 23.7.2005 and again on 25.7.2005 when the appellant
threatened him of dire consequences for not paying the
money. PW.4 also stated in his evidence that he got an
ID caller installed in his phone and he informed the police
of the phone number of the caller which was of the
appellant. PW.4 also stated in his evidence that he had F
direct talks with the appellant at hospital chawk prior to
the incident when he used to demand money from him
and other shopkeepers at the time of Durga Puja and
Saraswati Puja and that he can identify· the voice of the
appellant. The first 1.0. of the case (PW.6) in his evidence G
also stated that during investigation, mobile
No.9835273765 of the appellant was found and mobile
No.9431428630 of 'LS' was also found. PW. 8, the other
1.0. of the case stated that on 23.7.2005, four calls were
made between the mobile phones of 'LS' and the H
    332     SUPREME COURT REPORTS               (2011) 12 S.C.R.


A appellant. Then six more calls were made by 'LS' to the
  appellant on 3.08.2005, i.e. on the day of the incident itself.
  The printout details of these phone calls were produced
  before the Court. So both the trial court and High Court
  considered the evidence of PW.6 and PW.8, apart from
B the evidence of PW.4 and the other witnesses and the
  materials on record before coming to the conclusion. The
  fact that the name of registered allottees the SIM cards
  of these mobile phones could not be traced is not
  relevant in this connection. The evidence of PW.4 that he
c knows the voice of the appellant or that the mobile no.
  9835273765 was not that of the appellant was not
  challenged. The evidence of PW.8 that on 3.8.2005 eight
  calls were recorded between the mobiles of the appellant
  and his conspirator 'LS' was also not challenged. There
  was enough evidence to furnish reasonable ground to
0
  believe that both the appellant and 'LS' had conspired
  together for committing the offence. The substantive
  evidence was placed to prove the meeting of minds and
  criminal conspiracy between the appellant and 'LS' about
E the murder of the victim. There is any reason to interfere
  with the concurrent finding. There was no reason to take
  a view different from the one taken by the High Court.
  [Paras 30-33, 35, 37, 40, 42) [345-F-H; 346-A; 346-F-H; 347-
  A-D; 348-C-D; 349-A; 350-A-F]

F       *Kirpa/ Singh v. The State of Uttar Pradesh AIR 1965 SC
    712: 1964 SCR 992 - relied on.

       Nilesh Dinkar Paradkar v. State of Maharashtra (2011)
  4 SCC 143;/nspector of Police, Tamil Nadu v. Palanisamy
G alias Se/van (2008) 14SCC 495: 2008 (14) SCR 126 -
  distinguished.

      Saju v. State of Kera/a (2001) 1 SCC 378: 2000 (4)
  Suppl. SCR 621; Yogesh alias Sachin Jagdish Joshi v. State
  of Maharashtra (2008) 10SCC 394: 2008 (6) SCR 1116 -
H held inapplicable.
        MOHAN SINGH v. STATE OF BIHAR                333

    S. Arul Raja v. State of Tamil Nadu (2010) 8 SCC 233;   A
Mohd. Khalid v. State of West Bengal (2002) 7 SCC 334:
2002 (2) Suppl. SCR 31 - referred to.

                    Case Law Reference:
  AIR 1957 SC 199             referred to      Para 14      B

  1980 Suppl sec 92          followed          Para 16
  (1955) 2 SCR 1140           relied on        Para 19,
                                               20

  1963 Suppl. SCR 382         relied on        Para 21
                                                            c
  1964 SCR 297                relied on        Para 22
  AIR 1956 SC 171             relied on        Para 23
  2002 (3) Suppl. SCR 339     followed         Para 24      D

  (2004) 5 sec 334            followed         Para 25
  2009 (8) SCR 85             relied on        ·Para 26.
  2009 (6) SCR 755            relied on        Para 27      E
  1964 SCR 992                relied on        Para 32,
                                               33
  (2011) 4 sec 143            distinguished    Para 34

  2008 (14) SCR 126           distinguished    Para 35      F

  2000 (4) Suppl. SCR 621     held inapplicable Para 36
  2008 (6) SCR 1116           held inapplicable Para 38
  (201 O) a sec 233           referred to      Para 40      G
  2002 ( 2) Suppl. SCR 31     referred to       Para 41

    CRIMINAL AP PELLATE JURISDICTION : Criminal Appeal
No. 663 of 2010.
                                                            H
    334      SUPREME COURT REPORTS                [2011] 12 S.C.R.


A       From the Judgment & Order dated 03.09.2008 of the High
    Court of Patna in Criminal Appeal No. 1138 of 2007.

        V. Sivasubramanian, Md. Azam Ansari, Mohan Kumar,
    Roshni Singh, Sachin Das, Tanmaya Mehta (for Gopal Singh),
    Anshul Narayan (for Prem Prakash) for the appearing parties.
8
          The Judgment of the Court was delivered by

         GANGULY, J. 1. This criminal appeal has been preferred
    from the judgment of the High Court in Criminal Appeal (DB)
c   No. 1338 of 2007, dated 3.9.2008, whereby the High Court
    upheld the judgment and order of conviction passed by the
    learned Additional Sessions Judge, Fast Track Court-IV,
    Motihari, Eiast Champaran in Sessions Trial No. 101/16 of
    2006/2007. The learned Sessions Court held the appellant
D   guilty of criminal conspiracy for murder under sections 1208
    of IPC and of extortion under section 387 of IPC and sentenced
    him to undergo rigorous imprisonment for life and was fined
    for Rs.25,000/- for the offence of criminal conspiracy for murder
    under section 1208, in default of which he was to further
E   undergo simple imprisonment for 1 year. He was further
    sentenced for seven years rigorous imprisonment under section
    387 IPC and was fined Rs.5,000/-, in default of which to
    undergo simple imprisonment for six months.

         2. The facts of the case are that the informant Shri Vikas
F   Kumar Jha gave a fardbeyan to the effect that at about 5.00
    P.M. on 23.7.2005, he had received a call on his telephone
    number 06252-239727, inquiring about his elder brother Shri
    Anil Kumar Jha. The informant stated before the police that his
    elder brother, the owner of a medical store, on the said date
G   had been out of town. He submitted that he had communicated
    the same to the caller. Upon such reply, the caller disclosed
    himself as Mohan Singh, the appellant herein, and asked the
    informant to send him Rs.50,000/-. The informant submitted that
    he had similar conversations with the caller three to four times
H   in the past. However, he then received another telephone call
         MOHAN SINGH v. STATE OF BIHAR                    335
           [ASOK KUMAR GANGULY, J.]
on 25.7.2005 from a cell phone number 9835273765. The A
caller threatened him that since the demand of money had not
been fulfilled, the informant should be ready to face the
consequences.

     3. Upon his elder brother's return, the informant had
                                                                 8
narrated the events to him. However, his elder brother did not
take the threat seriously.

      4. On 3.8.2005, at about 9.00 P.M. when the informant was
at a place called Balua Chowk, he had received a call from his
driver Shri Dhanai Yadav on his cell phone to the effect that C
informant's elder brother and their father, Shri Sureshwar Jha,
had been shot at while they were in their medical store, and
that both of them had been rushed to Sadar Hospital. On
reaching Sadar Hospital, the informant saw the dead body of
his elder brother. He was intimated by the people there that his D
father had been shifted to another hospital called Rahman's
Nursing Home. He was also told that the shots had been fired
by one Laxmi Singh and Niraj Singh. Having heard this, the
informant rushed to Rahman's Nursing Home, where his injured
father told him that while Niraj Singh cleared the medical store E
of all the other people, Laxmi Singh had fired shots at him and
Anil Kumar Jha with an A.K. 47 rifle, before fleeing from the
scene. After narrating such events, his father became
unconscious.

     5. The informant further stated that his family had actually F
known the appellant and Laxmi Singh from an earlier i.ncident
in 2004, when on the occasion of Durga Puja, the two had sent
a messenger to Anil Kumar Jha's medical store, demanding
Rs.50,000/- or to face death in the alternative. He submitted
that pursuant to this, they had preferred a complaint before the G
police, and that the matter was sub judice. He further stated
that he had actually met the appellant once prior to the
telephone calls when the latter had asked for money, as
contribution for celebrations of Sarswati Puja and Durga Puja.
The informant thus stated that his father and brother had been H
    336     SUPREME COURT REPORTS                (2011) 12 S.C.R.


A attacked by Laxmi Singh and Niraj Singh at the instance of
  Mohan Singh for not having paid the extortion money. The
  informant said so on the identification of the voice of the
  telephone caller as that of the appellant. He, however, did not
  follow up the calls made on 23rd and 25th of July, 2005 either
B with the appellant in person, or with the authorities of Motihari
  jail where the appellant was in fact lodged at the time of the
  calls. These statements of the informant were supported by the
  informant's father Sureshwar Jha, and his other brother Sunil
  Kumar Jha.
c       6. On the basis of this fardbeyan, Motihari Town Police
  Station Case No.246/2005 was registered on 3.8.2005 against
  the appellant Mohan Singh, Laxmi Singh, Nir'aj Singh and
  others. The investigating officer submitted that he had known
  the appellant to have as many as seven criminal cases for
D murder, kidnapping for ransom and loot, pending against him.
  However, he submitted that he had received the phone number
  attributed to the appellant only from the informant. Though he
  submitted that as many as nine calls had been made between
  the phone numbers attributed to the appellant and Laxmi Singh,
E and that he had retrieved the records of calls made by the
  number attributed to the appellant and that of the informant, he
  had not been able to establish as to who were the registered
  owners of the SIM cards.

F      7. The learned Sessions Court in the course of trial took
  note of the fact that identities of the registered owners of the
  said SIM cards had not been established by the police, but it
  did not give much emphasis on this on the grounds that the
  informant's family had known the appellant and Laxmi Singh
G long enough and had known about their common intention to
  extort money. On these findings the learned Sessions Court
  found the appellant guilty.
        8. On appeal the learned Division Bench upheld the
    conviction inter alia on the grounds that the informant himself
H
          MOHAN SINGH v. STATE OF BIHAR                    337
            [ASOK KUMAR GANGULY, J.]
 and his family had known the appellant and Laxmi Singh from      A
 before.

      9. Even though the High Court in the impugned judgment
held that identification by voice and gait is risky, but in a case
where the witness identifying the voice had previous
                                                                   8
acquaintance with the caller, the accused in this case, such
identification can be relied upon. The High Court also held that
direct evidence in a conspiracy is difficult to be obtained. The
case of conspiracy has to be inferred from the conduct of the
parties. The High Court relied upon the evidence of the
informant, PW.4 and on Exts. 9 and 1Owhere the conversation C
between PW.4 and the appellant was recorded. The High Court
also relied upon the evidence of PW.1 Dhanai Yadav, who was
sitting inside the medical store of the deceased Anil Kumar Jha
at the time of the incident. PW.1 was a witness to the incident
of Laxmi Singh firing shots at the deceased and his father D
Sureshwar Jha. The High Court also relied upon the evidence
of PW.2 Surehswar Jha, the injured witness. The High Court
found thatthe evidence of PW.2 and 4 is unblemished and their
evidence cannot be discarded. The High Court also relied upon
the evidence of PW.4 as having identified the voice of the E
appellant.

     10. On appreciation of the aforesaid evidence, the High
 Court came to the conclusion that Mohan Singh was performing
 one part of the act, and Laxmi Singh performed another part,     F
 both performing their parts of the same act. Thus the case of
 conspiracy was made out.

      11. Assailing such finding of the Sessions Court which has
 been affirmed by the High Court, the learned Counsel
 appearing for the appellant argued that the appellant cannot be G
 convicted under section 120-B and given the sentence of
 rigorous imprisonment for life in view of the charges framed __
_ against the appellant.

                                                                  H
    338      SUPREME COURT REPORTS                   [2011] 12 S.C.R.


A       12. In order to appreciate this argument, the charges
    framed against the appellant are set out below:

                 "FIRST - That you, on or about the day of at about
          or during the period between 23.7.05 & 3.8.05 agreed with
          Laxmi Narain Singh, Niraj Singh & Pankaj Singh to commit
B
          the murder of Anil Jha, in the event of his not fulfilling your
          demand, as extortion of a sum of Rs.50,000/- and besides
          the above said agreement you did telephone from Motihari
          Jail to Vikash Jha in pursuance of the said agreement
          extending threat of dire consequences if the demand was
c         not met and then on 3.8.05 the offence of murder
          punishable with death was committed by your companions
          Laxmi Narain Singh and Niraj Singh and you thereby
          committed the offence of criminal conspiracy to commit
          murder of Anil Jha and seriously injured Sureshwar Jha
D         and thereby committed an offence punishable under
          Section 120-8 of the Indian Penal Code, and within my
          cognizance.

                SECONDLY - That you, during the period between
E         23.7.05 & 3.8.05 at Hospital gate Motihari P.S., Motihari
          Town Dist. East Champaran, Put Vikash Jha in fear of
          death and grievous hurt to him and his family members in
          order to commit extortion on telephone and thereby
          committed an offence punishable under Section 387 of the
F         Indian Penal Code, and within my cognizance and I hereby
          direct that you be tried by me on the said the charge.

               Charges were read over and explained in HindVto
          the accused and the accused pleaded not guilty as
          charged. Let him be tried."
G
        13. Admittedly, no complaint of any prejudice by the
    appellant was raised either before the trial Court or in the High
    Court or in the course of examination under Section 313
    Cr.P.C.
H
          MOHAN SINGH v. STATE OF BIHAR                        339
            [ASOK KUMAR GANGULY, J.]

      14; These points have been raised before this Court for          A.
the first time. In a case where points relating to errors in framing
of charge or even misjoinder of charge are raised before this
Court for the first time, such grievances are not normally
considered by this Court. Reference in this connection may be
made to the decision of a three-Judge Bench of this Court in           B
the case of Mangat Singh and others v. State of Madhya
Bharat reported in AIR 1957 SC 199. Justice Imam delivering
a unanimous opinion of the Court held in paragraph 5 at page
201 of the report as follows:-
                                                                       C
           "It was, however, urged that there had been
     misjoinder of charges. This point does not seem to have
     been urged in the High Court because there is no
     reference to it in the judgment of that Court and does not
     seem to have been taken in the Petition for special leave.
     The appellants cannot, therefore, be permitted to raise this      D
     question at this stage."

     15. However, instead of refusing to consider the said
grievance on the ground ofnot having been raised at an earlier
stage of the proceeding, we propose to examine the same on             E
its merits.

      16. The purpose of framing a charge is to give intimation
to the accused of clear, unambiguous and precise notice of the
nature of accusation that the accused is called upon to meet           F
in the course of a trial. (See decision of a four-Judge Bench of
this Court in V.C. Shukla v. State Through C.8.1., reported in
1980 Supplementary SCC 92 at page 150 and paragraph 110
of the report). Justice Desai delivering a concurring opinion,
opined as above.
                                                                       G
     17. But the question is how to interpret the words in a
charge? In this connection, we may refer to the provision of
Section 214 of the Code. Section 214 of the Code is set out
below:
                                                                       H
    340       SUPREME COURT REPORTS                  [2011) 12 S.C.R.


A         "214. Words in charge taken in sense of law under
          which offence is punishable. In every charge words
          used in describing an offence shall be deemed to have
          been used in the sense attached to them respectively by
          the law under which such offence is punishable."
B
        18. The other relevant provisions relating to charge may
    be noticed as under:

          "211. Contents of charge.- (1) Every charge under this
          Code shall state the offence with which the accused is
c         charged.

          (2) If the law which creates the offence gives it any specific
          name, the offence may be described in the charge by that
          name only.
D
          (3) If the law which creates the offence does not give it any
          specific name, so much of the definition of the offence
          must be stated as to give the accused notice of the matter
          with which he is charged.

E         (4) The law and section of the law against which the
          offence is said to have been committed shall be mentioned
          in the charge.

          (5) The fact that the charge is made is equivalent to a
          statement that every legal condition required by law to
F
          constitute the offence charged was fulfilled in the particular
          case.

          (6) The charge shall be written in the language of the Court.

G         (7) If the accused, having been previously convicted of any
          offence, is liable, by reason of such previous conviction,
          to enhanced punishment, or to punishment of a different
          kind, for a subsequent offence, and it is intended to prove
          such previous conviction for the purpose of affecting the
H         punishment which the Court may think fit to award for the
       MOHAN SINGH v. STATE OF BIHAR                     341
         [ASOK KUMAR GANGULY, J.]
subsequent offence, the fact date and place of the previous      A
conviction shall be stated in the charge: and if such
statement has been omitted, the Court may add it at any
time before sentence is passed.

215. Effect of errors. No error in stating either the offence
                                                                 8
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.
                                                                 c
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 D
including any misjoinder of charges, unless, in the opinion
of the Court of appeal, co11firmation or revision, a failure
of justice has in fact been occasioned thereby.

(2) If the Court of appeal, confirmation or revision is of       E
opinion that a failure of justice has in fact been
occasioned, it may-

 (a)    in the case of an omission to frame a charge, order
        that a charge be framed and that the trial be
        recommenced from the point immediately after the         F
        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 manner it thinks fit:      G

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."
                                                                 H
    342      SUPREME COURT REPORTS                 [2011] 12 S.C.R.


A        19. While examining the aforesaid provisions, we may
    keep in mind the principles laid down by Justice Vivian Bose
    in Willie (William) Slaney v. State of Madhya Pradesh
    reported in (1955) 2 SCR 1140. At page 1165 of the report,
    the learned judge observed:-
B         "We see no reason for straining at the meaning of these
          plain and emphatic provisions unless ritual and form are
          to be regarded as of the essence in criminal trials. We are
          unable to find any magic or charm in the ritual of a charge.
          It is the substance of these provisions that count and not
c         their outward form. To hold otherwise is only to provide
          avenues of escape for the guilty and afford no protection
          to the innocent."

         20. The aforesaid observation of Justice Vivian Bose in
D   William Slaney (supra) has been expressly approved
    subsequently by this Court in V.C. Shukla (supra).

         21. Reference in this connection may be made to the
    decision of this Court in the case of Tulsi Ram and others v.
E   State of Uttar Pradesh reported in AIR 1963 SC 666. In that
    case in paragraph 12 this Court was considering these aspects
    of the matter and made it clear that a complaint about the
    charge was never raised at any earlier stage and the learned
    Judges came to the conclusion that the charge was fully
    understood by the appellants in that case and they never
F   complained at the appropriate stage that they were confused
    or bewildered by the charge. The said thing is true here.
    Therefore, the Court refused to accept any grievance relating
    to error in the framing of the charge.

G        22. Subsequently, in the case of State of Andhra Pradesh
    v. Cheemalapati Ganeswara Rao and another reported in AIR
    1963 SC 1850, this Court also had to consider a similar
    grievance. Both in the case of Tutsi Ram (supra) as also in
    the case of Cheemalapati (supra) the charges were of
H   conspiracy. The same is also a charge in the instant case.
         MOHAN SINGH v. STATE OF BIHAR                      343
           [ASOK KUMAR GANGULY, J.]

Repelling the said grievance, the learned Judges held that the A
object in saying what has been set out in the first charge was
only to give notice to the accused as to the ambit of the
conspiracy to which they will have to answer and nothing more.
This Court held that even assuming for a moment that the ·
charge is cumbersome but in the absence of any objection at B
the proper time and in the absence of any material from which
the Court can infer prejudice, such grievances are precluded
by reason of provision of Section 225 of the Cr.P.C. Under the
present Code it is Section 215 which has been quoted above.

     23. Reference in this connection may also be made in the
                                                                   c
decision of this Court in Rawalpenta Venka/u and another v.
The State of Hyderabad reported in AIR 1956 SC 171 at para
10 page 174 of the report. The learned Judges came to the
conclusion that although Section 34 is not added to Section
302, the accused had clear notice that they were being charged 0
with the offence of committing murder in pursuance of their
common intention. Therefore, the omission to mention Section
34 in the charge has only an academic significance and has
not in any way misled the accused. In the instant case the
omission of charge of Section 302 has not in any way misled E
the accused inasmuch as it is made very clear that in the charge
that he agreed with the others to commit the murder of Anil Jha.
Following the aforesaid ratio there is no doubt that in the instant
case from the evidence led by the prosecution the charge of
murder has been brought home against the appellant.                 F

     24. In K. Prema S. Rao and another v. Yad/a Srinivasa
Rao and others reported in (2003) 1 SCC 217 this Court held
that though the charge specifically under Section 306 IPC was
not framed but all the ingredients constituting the offence were G
mentioned in the statement of charges and in paragraph 22 at
page 226 of the report, a three-Judge Bench of this Court held
that mere omission or defect in framing of charge does not
disable the criminal court from convicting the accused for the
offence which is found to have been proved on the evidence H
    344      SUPREME COURT REPORTS                  [2011] 12 S.C.R.


A on record. The learned Judges held that provisions of Section
  221 Cr.P.C. takes care of such a situation and safeguards the
  powers of the criminal court to convict an accused for an
  offence with which he is not charged although on facts found in
  evidence he could have been charged with such offence. The
B learned Judges have also referred to Section 215 of the
  Cr.P.C., set out above, in support of their contention.

       25. Even in the case of Dalbir Singh v. State of U.P.,
  reported in (2004) 5 SCC 334, a three-Judge Bench of this
C Court held that in view of Section 464 Cr.P.C. it is possible for
  the appellate or revisional court to convict the accused for an
  offence for which no charge was framed unless the court is of
  the opinion that the failure of justice will occasion in the process.
  The learned Judges further explained that in order to judge
  whether there is a failure of justice the Court has to examine
D whether the accused was aware of the basic ingredients of the
  offence for which he is being convicted and whether the main
  facts sought to be established against him were explained to
  him clearly and whether he got a fair chance to defend himself.
  If we follow these tests, we have no hesitation that in the instant
E case the accused had clear notice of what was alleged against
  him and he had adequate opportunity of defending himself
  against what was alleged against him.

       26. In State of Uttar Pradesh v. Paras Nath Singh reported
F in (2009) 6 SCC 372 this Court, setting out Section 464 of
  Cr.P.C., further held that whether there is failure of justice or
  not has to be proved by the accused. In the instant case no such
  argument was ever made before the Trial Court or even in the
  High Court and we are satisfied from the materials on record
G that no failure of justice has been occasioned in any way nor
  has the appellant suffered any prejudice.

      27. In Annareddy Sambasiva Reddy and others v. State
  of Andhra Pradesh reported in (2009) 12 SCC 546 this court
  again had occasion to deal with the same question and referred
H to Section 464 of Cr.P.C. In paragraph 55 at page 567 of the
         MOHAN SINGH v. STATE OF BIHAR                      345
           [ASOK KUMAR GANGULY, J.]
report, this Court came to the conclusion that if the ingredients A
of the section charged with are obvious and implicit, conviction
under such head can be sustained irrespective of the fact
whether the said section has been mentioned or not in the
charge. The basic question is one of prejudice.
                                                                   B
      28. In view of such consistent opinion of this Court, we are
of the view that no prejudice has been caused to the appellant
for non-mentioning of Section 302 l.P.C. in the charge since
all the ingredients of the offence were disclosed. The appellant
had full notice and had ample opportunity to defend himself
against the same and at no earlier stage· of the proceedings, C
the appellant had raised any grievance. Apart from that, on
overall consideration of the facts and circumstances of this case
we do not find that the appellant suffered any prejudice nor has
there been any failure of justice.
                                                                   D
      29. In the instant case, in the charge it has been clearly
mentioned that the accused-appellant has committed the
murder of Anil Jha. By mentioning that the accused has
committed the murder of Anil Jha all the ingredients of the
charge have been mentioned and the requirement of Section E
211, sub-section (2) has been complied with. Therefore, we do
 ·ot find any substance in the aforesaid grievance of the
  ppellant.

      30. Now the only other point on which argument has been
made on behalf of the appellant is that in the instant case F
appellant was in jail at the time of the commission of the offence.
It has been submitted that his involvement in the whole episode
has been argued for only on the evidence of PW.4 who is said
to have identified his voice on the basis of some telephone
calls.                                                              G

     31. These are essentially questions of fact and after a
concurrent finding by two courts normally this Court in an appeal
against such finding is slow and circumspect to upset such
finding unless this Court finds the finding to be perverse.       H
    346      SUPREME COURT REPORTS                    [2011] 12 S.C.R.

                                          '
A       32. However, on the legal issue one thing is clear that
    identification by voice has to be considered by this Court
    carefully and on this aspect some guidelines have been laid
    down by this Court in the case of Kirpal Singh v. The State of
    Uttar Pradesh reported in AIR 1965 SC 712. In dealing with
B   the question of voice identification, construing the provisions
    of Section 9 of the Indian Evidence Act, this Court held:

          " ... It is true that the evidence about identification of a
          person by the timbre of his voice depending upon subtle
          variations in the overtones when the person recognising
c         is not familiar with the person recognised may be some-
          what risky in a criminal trial. But the appellant was intimately
          known to Rakkha Singh and for more than a fortnight
          before the date of the offence he had met the appellant
          on several occasions in connection with the dispute about
D         the sugarcane crop .... "

          (para 4, page 714 of the report)

         33. Relying on such identification by voice this Court held
E   in Kripa/ Singh (supra) that it cannot come to the conclusion
    that the identification of the assailant by Rakkha Singh was so
    improbable that this Court would be justified in disagreeing with
    the opinion of the Court which saw the witness and formed its
    opinion as to its credibility and also of the High Court which
    considered the evidence against the appellant and accepted
F   the testimony (see para 4, page 714 of the report). The same
    principles will apply here. PW.4 in his evidence clearly stated
    that the appellant gave him a phone call asking for money on
    23.7.2005 and again on 25.7.2005 when the appellant
    threatened him of dire consequences for not paying the money.
G   PW.4 also stated in his evidence that he got an ID caller
    installed in his phone and he informed the police of the phone
    number of the caller which is of the appellant. PW .4 also stated
    in his evidence that he had direct talks with the appellant at
    hospital chawk prior to the incident when he used to demand
H   money from him and other shopkeepers at the time of Durga
          MOHAN SINGH v. STATE OF BIHAR                      347
            [ASOK KUMAR GANGULY, J.]

 Puja and Saraswati Puja. PW.4 specifically stated that he can A
 identify. the voice of Mohan Singh. The first 1.0. of tHe case
 (PW.6) in his evidence also stated that during investigation
mobile No.9835273765 of Mohan Singh was found and mobile
 No.9431428630 of Laxmi Singh was also found. P.W. 8, the
other 1.0. of the case stated that on 23.7.2005, four calls were B
made between the mobile phones of Laxmi Singh and Mohan
 Singh. Then six more calls were made by Laxmi Singh to Mohan
Singh on 3.08.2005, i.e. on the day of the incident itself. The
printout details of these phone calls were produced before the
Court. So both the Trial Court and High Court considered the       c
evidence of PW.6 and PW.8 who were the investigating officers
in this case, apart from the evidence of PW.4, other witnesses .
and the materials on record before coming to the conclusion.
The fact that the name of registered allottees the SIM cards of
these mobile phones could not be traced is not relevant in this 0
connection. This Court finds that from para 19 onwards of the
judgment by the High Court these aspects have received due
consideration.

     34. The learned counsel for the appellant relied on some
judgments in support of his contention that in the facts of this E
case voice identification cannot be accepted. The learned
counsel relied on a judgment of this Court in the case of Nilesh
Dinkar Paradkar v. State of Maharashtra reported in (2011) 4
sec 143. In that case the voice in the telephone was tapped
and then the voice was recorded in a cassette and the cassette F
was then played to identify the voice. Therefore, there is a
substantial factual difference with the facts in the case of Nilesh
(supra) and the facts of the present case. Apart from that in
Nilesh (supra), the High Court acquitted A 1 to A4 and this Court
finds that the evidence against Nilesh was identical. Therefore, G
this Court held that the conclusion of the High court in acquitting
Accused 1, 2, 3 and 4 has virtually "destroyed the entire
substratum of the prosecution case" (see para 28 of the report).
Since that decision was passed on tape recorded version of
                                                                    H
     348       SUPREME COURT REPORTS                 [2011] 12 S.C.R.


.A   the voice, the principles decided in that case, even though are
     unexceptionable, cannot be applied to the present cas.e.

          35. The other case on which reliance was placed by the
     learned counsel for the appellant was in the case of Inspector
     of Police, Tamil Nadu v. Palanisamy alias Se/van reported
B    in (2008) 14 SCC 495. In that case this Court held that
     identification from voice is possible but in that case no
     evidence was adduced to show that witnesses were closely
     acquainted with the accused to identify him from his voice and
     that too from very short replies. Therefore, this case factually
C    stands on a different footing. In the instant case the evidence
     of PW.4 that he knows the voice of the appellant was not
     challenged nor was it challenged that the mobile no.
     9835273765 is not that of the appellant. Nor has the evidence
     of PW.8 been challenged that on 3.8.2005 eight calls were
D    recorded between the mobiles of the appellant and his
     conspirator Laxmi Singh.

          36. The next decision on which reliance was placed by the
     learned counsel for the appellant was rendered in the case of
E    Saju v. State of Kera/a reported in (2001) 1 SCC 378. In Saju
     (supra) this Court explained the principles of Section 10 of the
     Evidence Act, as follows:-

           "Evidene Act, 1872 - Sec.10 - Conditio.n for
           appHcability of
F
           Act or action of one of the accused cannot be used as
           evidence against the other. However, an exception has
           been carved out under Section 10 of the Evidence Act in
           the case of conspiracy. To attract the applicability of
G          Section 10 of the Evidence Act, the court must have
           reasonable ground to believe that two or more persons had
           conspired together for committing an offence. It is only then
           that the evidence of action or statement made by one of
           the accused could be used as evidence against the other."
H
         MOHAN SINGH v. STATE OF BIHAR                       349
           [ASOK KUMAR GANGULY, J.]
     37 .. If we apply the aforesaid principles to the facts of the A
present case it is clear that there is enough evidence to furnish
reasonable ground to believe that both the appellant and Laxmi
Singh had conspired together for committing the offence.
Therefore, the principles of this case do not help the appellant.
                                                                    B
     38. Learned counsel for the appellant also relied upon the
decision of this Court in the case of Yogesh alias Sachin
Jagdish Joshi v. State of Maharashtra reported in (2008) 10
SCC 394. In paragraph 25 at page 402 of the report this Court
laid down the following principles:-
                                                                    c
    "Thus, it is manifest that the meeting of minds of two or
    more persons for doing an illegal act or an act by illegal
    means is sine qua non of the criminal conspiracy but it may
    not be possible to prove the agreement between them by
    direct proof. Nevertheless, existence of the conspiracy and D
    its objective can be inferred from the surrounding
    circumstances and the conduct of the accused. But the
    incriminating circumstances must form a chain of events
    from which a conclusion about the guilt of the accused
    could be drawn. It is well settled that an offence of E
    conspiracy is a substantive offence and renders the mere
    agreement to commit an offence punishable, even if an
    offence does not take place pursuant to the illegal
    agreement."

    39. In view of the aforesaid principles, this Court finds that · F
no assistance can be drawn from the aforesaid decision to the
case of the appellant in this case.
     40. Reliance was also placed on the decision of this Court
in the case of S. Aru/ Raja v. State of Tamil Nadu reported in G
(2010) 8 sec 233. In that case this Court held that mere
circumstantial evidence to prove the involvement of the accused
is not sufficient to meet the requirements of criminal conspiracy
and meeting of minds to form a criminal conspiracy has to be
proved by placing substantive evidence. In the instant case, as H
    350       SUPREME COURT REPORTS                    [2011] 12 S.C.R.


A discussed above, substantive evidence was placed to prove
  the meeting of minds between the appellant and Laxrrii Singh
  about the murder of the victim. In evidence which has been noted
  hereinabove in the earlier part of the judgment it clearly shows
  that there is substantial piece of evidence to prove criminal
B conspiracy.

       41. Reliance was also placed by the learned counsel for
  the appellant on the decision of this Court in the case of Mohd.
  Khalid v. State of West Bengal reported in (2002) 7 SCC 334.
  In that case, this court held that offence of conspiracy can be
C proved by either direct or circumstantial evidence. In paragraph
  24 at page 354 of the report the following observations have
  been made:-

           "Conspiracies are not hatched in the open, by their nature,
D          they are secretly planned, they can be proved even by
           circumstantial evidence, the lack of direct evidence relating
           to conspiracy has no consequence.     n




        42. For the reasons discussed above, this Court does not
E find that there is any reason to interfere with the concurrent
  finding in the instant case. This Court, therefore, does not find
  any reason to take a view different from the one taken by the
  High Court.

          43. The appeal is dismissed and the conviction of the
F   appellant under Section 1208 of IPC for life imprisonment is
    affirmed.

    D.G.                                             Appeal dismissed.