Supreme Court of India
RAFIQ AHMED @ RAFIversusSTATE OF U.P.
- Citation
- 2011 INSC 546
- Decided
- 4 August 2011
- Disposal
- Dismissed
- Bench
- B S CHAUHAN
Holding
Conviction under IPC s.302 is permissible where the charge was framed under s.396, as s.302 is a cognate offence incorporated in s.396, and no prejudice to the accused is shown.
Summary
The appellant Rafiq Ahmed was charged with dacoity with murder under IPC s.396 (and s.201) but was convicted of murder under s.302. He argued that the lack of a specific charge under s.302 deprived him of a fair defence and caused prejudice. The Supreme Court examined the statutory relationship between s.396 and s.302, held that murder is an integral component of the offence of dacoity with murder, and that the prosecution had established the charge beyond reasonable doubt through circumstantial evidence. The Court found no prejudice to the appellant’s right to a fair trial, noting that the essential ingredients of s.302 were put to him and that non‑reformulation of the charge does not vitiate the trial absent demonstrable prejudice. Consequently, the conviction under s.302 was upheld.
Issues considered
- The validity of convicting an accused under IPC s.302 when the charge was framed under s.396 without reformulating the charge.
- Whether the appellant suffered prejudice due to the absence of a specific charge under s.302.
- Whether the prosecution proved the murder beyond reasonable doubt on the basis of circumstantial evidence.
- Interpretation of IPC s.396 and s.302 and the concept of cognate offences.
- Effect of non‑framing or mis‑joinder of charges on the validity of a conviction.
Legislation cited
- Code of Criminal Procedure, 1973s. 211, s. 212, s. 213, s. 214, s. 215, s. 222, s. 224, s. 313, s. 464
- Indian Penal Code, 1860s. 201, s. 299, s. 300, s. 302, s. 391, s. 392, s. 396, s. 399, s. 411
Subjects
cognate offencescharge framingprejudicecircumstantial evidencedacoity with murderIPC s.302IPC s.396fair trialcriminal procedure
Judgment
(2011] 11 S.C.R. 907
RAFIQ AHMED @ RAFI A
v.
STATE OF U.P.
(Criminal Appeal No. 656 of 2005)
AUGUST 04, 2011
B
[DR. B.S. CHAUHAN AND SWATANTER KUMAR, JJ.]
Penal Code, 1860:
ss. 302, 396 - A/legation of dacoity and murder - Charge c
sheet filed ulss.396, 201 - Conviction u/ss.302 and 201 -
Plea of appellant that he was charged for offence u/s. 396 but
without reformulation/alteration of the charge, he was
convicted for offence u/s.302 and this deprived him of a fair
opportunity of defence and caused him serious prejudice; that 0
s.302 is a graver offence than an offence punishable u/s.396
and as such the entire trial and conviction of the appellant was
vitiated in law; that there were serious contradictions between
the statements of the witnesses and the courts below failed
to appreciate the evidence in its correct perspective and this E
·being a case of circumstantial evidence, prosecution failed
to prove chain of events pointing towards the guilt of the
accused - On appeal, held: PW2 and PW4 were the
witnesses who had last seen the deceased with the appellant
- The statements of the Investigating Officer and the witnesses
including PW3, in whose presence the dead body was F
recovered at the behest of the appellant, by means of recovery
memo were the other material pieces of evidence which
completed the chain of events and pointed undoubtedly
towards the guilt of the accused - Prosecution was able to
establish its case beyond reasonable doubt on the basis of G
the circumstantial evidence - There was no significant link
which was missing in the case put forward by the prosecution
- No prejudice was caused to the appellant by his conviction
u/s.302 though he was initially charged u/s.396 rlw s.201 -
907 H
908 SUPREME COURT REPORTS [2011] 11 S.C.R.
A Further, the nature of injuries namely three incised wounds,
three abrasions and severing of the trachea, caused by a
sharp-edged weapon indicated that the accused knew that the
injury inflicted would be sufficient in the ordinary course of
nature to cause death - The incriminating evidence were
B clearly put to the accused in his statement u/s.313 Cr.P.C. -
The circumstances which constitute an offence uls. 302 were
literally put to him, as s. 302 itself is an integral part of an
offence punishable under s. 396 - The appellant was not able
to demonstrate any prejudice which the appellant suffered in
c his right to defence, fair trial and in relation to the case of the
prosecution - Since the appellant did not suffer any prejudice,
much less a serious prejudice, his conviction uls.302 cannot
be set aside merely for want of framing of a specific/alternate
charge for offence punishable uls.302 - More so because the
0 dimensions and facets of an offence u/s.302 are incorporated
by specific language and are inbuilt in the offence punishable
uls.396 - Thus, on the application of principle of 'cognate
offences', there was no prejudice caused to the rights of the
appellant - Conviction upheld.
E ss.392, 396- Essential ingredients- Held: To constitute.
an offence of 'dacoity', robbery essentially should be
committed by five or more persons - To constitute an offence
of 'dacoity with murder' if any one of the five or more persons
commit a murder while committing the dacoity, then every one
F of such persons so committing, attempting to commit or
aiding, by fiction of law, would be deemed to have committed
the offence of murder and be liable for punishment depending
upon the facts and circumstances of the case.
ss.302, 396 - Distinction between - Discussed.
G
ss.302, 396 - Sentencing for the offence under -
Jurisdiction of court - Held: Under s.396, wide discretion is
vested in the courts in awarding punishment - The court, in
exercise of its jurisdiction can award sentence of ten years with
H fine or even award sentence of life imprisonment or sentence
RAFIQ AHMED @ RAFI v. STATE OF U.P. 909
of death, as the case may be while u/s. 302, the court cannot, A
in its discretion, award sentence lesser than life imprisonment.
ss.302, 396 - Essential ingredients - Held: The
ingredients of both these offences, to some extent, are
different inasmuch as to complete an offence of 'dacoity' u/ 8
s.396, five or more persons must conjointly commit the
robbery while u/s.302 even one person by himself can commit
the offence of murder - But, to attract the provisions of s. 396,
the offence of 'dacoity' must be coupled with murder - The
ingredients of s.302 become an integral part of the offences
punishable u/s.396 - Resultantly, the distinction with regard C
to the number of persons involved in the commission of the
crime loses its significance as it is possible that the offence
of 'dacoity' may not be proved but still the offence of murder
could be established - A conjoint reading of ss.396 and 302
shows that the offence of murder has been lifted and D
incorporated in the provisions of s.396 - The offence of
murder punishable u/s.302 and as defined u/s.300 will have
.to be read into the provisions of offences stated uls.396- The
expression 'murder' appearing in s.396 would have to take
necessarily in its ambit and scope the ingredients of s.300 - E
There is no scope for any ambiguity - The provisions are
clear and admit no scope for application of any other principle
of interpretation except the 'golden rule of construction', i.e.,
to read the statutory language grammatically and
terminologically in the ordinary and primary sense which it F
appears in its context without omission or addition - These
provisions read collectively put the matter beyond ambiguity
that the offence of murder, is by specific language, included
in the offences uls.396 - It will have the same connotation,
meaning and ingredients as are contemplated under the G
provisions of s. 302 - Interpretation of statutes.
Criminal jurisprudence:
Offences of grave nature vis-a-vis offence of lesser grave
nature - Held: Usually an offence of grave nature includes H
910 SUPREME COURT REPORTS (2011] 11 S.C.R.
A in itself the essentials of a lesser but cognate offence -
Wherever an accused is charged with a grave offence, he can
be punished for a less grave offence finally, if the grave
offence is not proved - But even in those cases, -the Court
has to be cautious while examining whether the ingredients
B of the offences are independently satisfied - If the ingredients
even of a lesser offence are not satisfied then it may be
difficult in a given case for the court to convict the person for
(3n offence of a less grave nature - There can be cases where
it may not be possible at all to punish a person of a less grave
c offence if its ingredients are completely different and distinct
from the grave offence - Thus, the accused has to be charged
with a grave offence which would take within its ambit and
scope, the ingredients of a less grave offence.
Prejudice - Held: To show prejudice to an accused, it has
D to be shown that the accused has suffered some disability or
detriment in the protections available to him under the Indian
criminal jurisprudence - Courts should make a close
examination to ascertain whether there was really a failure of
justice or whether it is only a camouflage - Administration of
E Criminal Justice.
Code of criminal Procedure, 1973:
Object of the Code -_Held: To further the ends of justice
and not to frustrate them by the introduction of endless
F technicalities - The object is to ensure that an accused person
gets a full and fair trial along with certain well-established and
we/I-understood canons of law that accord with th53 notions of
natural justice.
G ss. 211 to 215 - Framing of charge - Purpose of -
Discussed.
ss.211 to 215 - Protections to and rights of the accused
during investigation and trial - Held: The accused has the
H freedom to maintain silence during investigation as well as
RAFIQ AHMED @ RAFI v. STATE OF U.P. 911
before the Court - He may choose to maintain .silence or A
make complete denial even when his statement u/s.313,
Cr.P. C. is being recorded - The accused has right to fair trial
- There is presumption of innocence (not guilty) and the
prosecution has to prove its case beyond· reasonable doubt
- In case of allegation of prejudice by the accused, the Courls B
are required to examine both the contents of the allegation
of prejudice as well as its extent in relation to these aspects
of the case of the accused - It will neither be possible nor
appropriate to state such principle with exactitude as it will
allJYays depend on the facts and circumstances of a given c
case - Therefore, the Courl has to ensure that the ends of
justice are met as that alone is the goal of criminal
adjudication - Thus, wherever a plea of prejudice is raised
by the accused, it must be examined with reference to these
rights and safeguards, as it is the violation of ttiese rights
0
alone that may result in weakening of the case of the
prosecution and benefit to the accused in accordance with law.
Non-framing of charge or some defect in drafting of the
charge - Held: Per se would not vitiate the trial itself - It will
have to be examined in the facts and circumstances of a E
given case - Of course, the court has to keep in mind that
the accused 'must be' and not merely 'may be' guilty of an
offence - A person charged with a heinous or grave offence
can be punished for a less grave offence of cognate nature
whose essentials are satisfied with the evidence on record - F
Where the offences are cognate offences with commonality
in their feature, duly supported by evidence on record, the
Courts can always exercise its power to punish the accused
for one or the other provided the accused does not suffer any
orejudice as indicated. G
INTERPRETATION OF STATUTES: Where a provision
is physically lifted and made part of another provision, it shall
"all within the ambit and scope of principle akin to 'legislation
')y incorporation' which normally is applied between an
H
912 . SUPREME COURT REPORTS [2011] 11 S.C.R..
A existing statute and a newly enacted Jaw - Penal Code, 1860
- ss.396.
WORDS AND PHRASES: Word 'prejudice', cognate',
'cognate offence - Meaning of
B The prosecution case was that five accused
including appellant committed dacoity in a car belonging
to the appellant and also murdered the victim-deceased.
The uncle of the deceased was a merchant. The
deceased used to realize money from the market on
C behalf of his uncle's firm. On the fateful day, the deceased
had gone to collect money but he did not return home at
night. A case was registered under Section 364, IPC. After
investigation, the appellant was arrested. He made a
confessional statement that the dead body of the
D deceased. was lying in sugarcane fields. The body was
recovered and identified. The other accused were also
arrested. The appellant was charged under Sections 396
and 201, IPC. The trial court convicted the appellant under
Sections 302 and 201 IPC. The accused 'A' was convicted
E under Section 411, IPC but the trial court acquitted him
and three other accused for the offence under Section
396 IPC by giving them benefit of doubt. On appeals, the
High Court allowed the appeal of 'A' and acquitted him
even of the charge under Section 411, IPC. However, the
F conviction of the appellant was upheld. The instant
appeal was filed challenging the order of the High Court.
It was contended for the appellant that he was
charged for an offence under Section 396 IPC but without
reformulation/alteration of the charge, he was convicted
G for an offence under Section 302 IPC and this deprived
him of a fair opportunity of defence and has caused him
serious prejudice; that Section 302, IPC is a graver
offence than an offence punishable under Section 396,
IPC and as such the entire trial and conviction of the
H appellant was vitiated in law; that there were serious
RAFIQ AHMED @ RAFI v. STATE OF U.P. 913
contradictions between the statements of the witnesses A
and the courts below erred in fact and in law, failed to
appreciate the evidence in its correct perspective and this
being a case of circumstantial evidence, the prosecution
has failed to prove the chain of events pointing towards
the guilt of the accused. B
Dismissing the appeal, the Court
HELD: 1.1. The appellant was charged with an
offence under Sections 396 and 201, IPC. Section 391, IPC
explains the offence of 'dacoity'. When five or more C
persons conjointly commit or attempt to commit a
robbery, or where the whole number of persons
conjointly committihg or attempting to commit a robbery,
and persons present and aiding such commission and
attempt amount to five or more, every person so D
committing, attempting or aiding, is said to commit
'dacoity'. Under Section 392 IPC, the offence of 'robbery'
simplicitor is punishable with rigorous imprisonment
which may extend to ten years or 14 years depending
upon the facts of a given case. Section 396 IPC brings E
within its ambit a murder committed along with 'dacoity'.
In terms of "this provision, if any one of the five or more
persons, who are conjointly committing dacoity, commits
murder in so committing dacoity, every one of those
persons shall be punished with death or imprisonment
for life or rigorous imprisonment for a term which may F
extend to ten years and shall also be liable to fine. On a
plain reading of these provisions, it is clear that to
constitute an offence of 'dacoity', robbery essentially
should be committed by five or more persons. Similarly,
to constitute an offence of 'dacoity with murder' any one G
of the five or more persons should commit a murder while
~ommitting the dacoity, then every one of such persons
so committing, attempting to commit or aiding, by fiction
of law, would be deemed to have committed the offence
Qf murder and be liable for punishment provided under H
914 SUPREME COURT REPORTS [2011) 11 S.C.R.
A these provisions depending upon the facts and
circumstances of the case. [Paras 6-8] [932-F-H; 933-A-
E]
1.2. Section 299 defines 'culpable homicide'.
Whoever causes death by doing an act with the intention
8
of causing death, or with the intention of causing such
bodily injury as is likely to cause death, or with the
knowledge that. he is likely by such act to cause death,
commits the offence of culpable homicide. Except the
exceptions provided under Section 300 IPC, culpable
C homicide is murder if the act by which death is caused
is done with the intention of causing death. The intention
to cause death is the primary distinguishing feature
between these two offences. It is a fine but clear -tine of
distinction. In terms of Section 300 IPC, except in the
D cases stated in that provision, culpable homicide is
murder if the act by which the death is caused is done
with the intention of causing death or in terms of any of
the circumstances stated secondly, thirdly and fourthly
respectively. The law clearly marks a distinction between
E culpable homicide amounting to murder and culpable
homicide not amounting to murder. Another. distinction
between Sections 302 and 396 is that under the latter,
wide discretion is vested in the courts in awarding
punishment. The court, in exercise of its jurisdiction and
F judicial discretion in consonance with the established
principles of law can award sentence of ten years with
fine or even award sentence of life imprisonment or
sentence of death, as the case may be while under
Section 302, the court cannot, In Its discretion, award
G sentence lesser than life imprisonment.The ingredients
of both these offences, to some extent, are also different
inasmuch as to complete an offence of 'dacoity' under
Section 396 IPC, five or more persons must conjointly
commit the robbery while under Section 302 of the IPC
H even one person by himself can commit the offence of
RAFIQ AHMED @ RAFI v. STATE OF U.P. 915
murder. But, to attract the provisions of Section 396, the A ·
offence of 'dacoity' must be coupled with murder. In other
words, the ingredients of Section 302 become an integral
part of the offences punisl")able under Section 396 of the
IPC. Resultantly, the distinction with regard to the number
of persons involved in the commission of the crime loses B
its significance as it is possible that the offence of
'dacoity' may not be proved but still the offence of murder
could be established, like in the instant case. Upon
reasonable analysis of the language of these provisions,
it is clear that the Court has to keep in mind the c
ingredients which shall constitute a criminal offence
within the meaning of the penal section. This is not only
essential in the case of the offence charged with but even
where there is comparative study of different penal
provisions as the accused may have committed more
0
than one offence or even offences of a graver.nature. He
may finally be punished for a lesser offence or vice versa,
if the law so permits and the requisite ingredients are
satisfied. [Paras 9-11] [933-F-H; 934-A-H]
1.3. The judicial pronouncements show a consistent E
trend that wherever an accused is charged with a grave
offence, he can be punished for a less grave offence
finally, if the grave offence is not proved. But even 'in
those cases, the Court has to be cautious while
examining whether the ingredients of the offences are F
independentfy satisfied. If the ingredients even of a lesser
offence are not satisfied then it may be difficult in a given
case for the court to convict the person for an offence of
a less grave nature. There can be cases where it may not
be possible at all to punish a person of a less grave G
offence if its ingredients are completely different and
distinct from the grave offence. In other words, the.
accused has to be charged with a grave offence which
would take within its ambit and scope the ingredients of
a less grave offence. The evidence led by the prosecution H
916 SUPREME COURT REPORTS [2011] 11 S.C.R.
A for a grave offence, thus, would cover an offence of a less
grave nature. But it is essential that the offence for which
the Court proposes to punish the accused, is established
beyond reasonable doubt by the prosecution. [Para 12]
(935-A-F]
B
1.4. The Code of Criminal Procedure like all
procedural laws is designed to further the ends of justice
and not to frustrate them by the introduction of endless
technicalities. The object of the Code is to ensure that an
accused person gets a full and fair trial along with certain
C well-established and well-understood canons of law that
accord with the notions of natural justice. Usually an
offence of grave nature includes in itself the essentials
of a lesser but cognate offence. In other words, there are
classes of offences like offences against the human
D body, offeoces against property and offences relating to
cheating, misappropriation, forgery etc. In the normal
course of events, the question of grave and less grave
offences would arise in relation to the offences falling in
the same class and normally may not be inter se the
E classes. It is expected of the prosecution to collect all
evidence in accordance with law to ensure that the
prosecution is able to establish the charge with which the
accused' is charged, beyond reasonable doubt. It is only
in those cases, keeping in view the facts and
F circumstances of a given case and if the court is of the
view that the grave offence has not been established on
merits or for a default of technical nature, it may still
proceed to punish the accused for an offence of a less
grave nature and content. [Paras 14, 17] (939-B-C; 942-
G B-E]
Willie (William) Slaney v. State of Madhya Pradesh AIR
1956 SC 116: 1955 SCR 1140 - followed.
Iman Ali & Anr. v. State of Assam AIR 1968 SC 1464:
H 1968 SCR 610 - relied on.
RAFIQ AHMED @ RAFI v. STATE OF U.P. 917
2. ( To show prejudice to an accused, it has to be A
shown that the accused has suffered some disability or
· detriment in the protections available to him under the
Indian criminal jurisprudence. It Is also a settled canon
of criminal law that this has occasioned the accused with
failure of justice. One of the other cardinal principles of B
criminal justice administration is that the courts should
make a close examination to ascertain whether there was
really a failure of justice or whether it is only a
camouflage, as this expression is perhaps too pliable.
With the development of law, Indian courts have accepted c
certain protections to and rights of the accused during
investigation and trial which are: The accused has the
freedom to maintain silence during investigation as well
as before the Court. The accused may choose to maintain
silence or make complete denial even when his statement D
. under Section 313 of the Code of Criminal Procedure is
being recorded, of course, the Court would be entitled to
draw inference, including adverse inference, as may be
permissible to it in accordance with law. The accused has
right to fair trial; There is presumption of innocence (not E
guilty) and the prosecution must prove its case beyond
reasonable doubt. Prejudice to an accused or failure of
justice, thus, has to be examined with reference to these
aspects. That alone, probably, is the method to determine
with some element of certainty and discernment whether
there has been actual failure of justice. 'Prejudice' is F
incapable of being interpreted in its generic sense and
applied to criminal jurisprudence. The plea of prejudice
has to be in relation to investigation or trial and not
matters falling beyond their scope. Once the accused is
able to show that there is serious prejudice to either of G
these aspects and that the same has defeated the rights
available to him under the criminal jurisprudence, then
the accused can seek benefit under the orders of the
Court. [Paras 20-21] [945-B-H; 946-A-B]
H
918 SUPREME COURT REPORTS [2011] 11 S.C.R.
A Anil @ Raju Namdev Patil vs. Administration of Daman
& Diu and Anr. 2006 Suppl. (9) SCR 466; K. Prema S. Rao
and Anr. v. Yadla Srinivasa Rao and Ors. (2003) 1 SCC 217:
2002 (3) Suppl. SCR 339; Kammari Brahmaiah and Ors. v.
Public Prosecutor, High Court of A.P. (1999) 2 SCC 522:
B 1999 (1) SCR 361; Dalbir Singh v. State of U.P. (2004) 5
SCC 334; Kamalanantha and Ors. v. State of T.N. (2005) 5
SCC 194: 2005 (3) SCR 182; Harjit Singh v. State of Punjab
(2006) 1 sec 463: 2005 (5) Suppl. SCR 629 .... relied on.
Black's Law Dictionary, Eighth Edition - referred to.
c
2.2. Right to fair trial, presumption of innocence until
pronouncement of guilt and the standards of proof, i . e.,
the prosecution must prove its case beyond reasonable
doubt are the basic and crucial tenets of Indian criminal
D jurisprudence. The Courts are required to examine both
the contents of the allegation of prejudice as well as its
extent in relation to these aspects of the case of the
accused. It will neither be possible nor appropriate to
state such principle with exactitude as it will always
E depend on the facts and circumstances of a given case.
Therefore, the Court has to ensure that the ends of justice
are met as that alone is the goal of criminal adjudication.
Thus, wherever a plea of prejudice is raised by the
accused, it must be examined with reference to these
F rights and safeguards, as it is the violation of these rights
alone that may result in weakening of the case of the
prosecution and benefit to the accused in ~ccordance
with law. [Para 22] [946-C-E]
Shamnsaheb M. Multtani v. State of Kamataka (2001) 2
G SCC 577: 2001 (1) SCR 514; Dinesh Seth v. State of NCT
of Delhi (2008) 14 SCC 94: 2008 (12) SCR 113; Shivaji
Sahebrao Bobade & Anr. v. State of Maharashtra AIR 1973
SC 2622: 1974 (1) SCR 489 - relied on.
H 2.3. During conduct of trial, framing of a charge is an
RAFIQ AHMED @ RAFI v. STATE OF U.P. 919
important function of the court. Sections 211 to 224 of A
Chapter XVII of the Code of Criminal Procedure, 1973
have been devoted by the Legislature to the various
facets of framing of charge and other related matters
thereto. Under Section 211, the charge should state the
offence with which the accused is charged and should B
contain the other particulars specified in that section. In
terms of Section 214, 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 pu.nishable. Another c
significant provision is Section 215 which states that 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 0
was in fact misled by such error or omission, and it has
occasioned a failure of justice. Further, the court has
·been vested with the power to alter the charge. There
could be trial of more than one offence together and there
could even be joint trial of the accused. The purpose of E
framing of a charge is to put the accused at notice
regarding the offen.ce for which he is being tried before
the court of competent jurisdiction. For want of requisite
information of offence and details thereof, the accused
should not suffer prejudice or there should not be failure
of justice. The requirements of putting the accused at F
notice and there being a charge containing the requisite
particulars, as contemplated under Section 211, has to be
read with reference to Section 215 of the Code. [Para 22)
[946-F-H; 947-A-D]
G
3.1. Non-framing of charge or some defect in drafting
of the charge per se would not vitiate the trial itself. It will
have to be examined in the facts and circumstances of a
given case. Of course, the court has to keep in mind that
the accused 'must be' and not merely 'may be' guilty of H
920 SUPREME COURT .REPORTS [2011] 11 S.C.R.
A an offence. The mental distance between 'may be' and
'must be' Is long and divides vague conjectures from
sure conclusions. A person charged with a heinous or
grave offence can be punished for a less grave offence
of cognate nature whose essentials are satisfied with the
B evidence on record. Alike or similar offences can be
termed as 'cognate offences'. The word 'cognate' is a term
primarily used in civil jurisprudence particularly with
reference to the provisions of the Hindu Succession Act,
1956 where Section 3(c) has used this expression in
c relation to the d'escendants of a class of heirs an·d
normally the term is used with reference to blood
relations. The expression 'cognate' has also been
recognized and applied to the criminal jurisprudence as
well not only in the Indian system but even in other parts
of the world. Such offences indicate the similarity,
0
common essential features between the offences and
they primarily being based on differences of degree hav~
been understood to be ·'cognate offences'. Therefore,
where the offences are cognate offences with
commonality in their feature, duly supported by evidence
E on record-, ttie Courts can always exercise its power to
punish the a'ccused for one or the 'other provided the
accused does not suffer any prejudice as indicated.
[Paras 22, 23, 25, 26) [948-C-G; 949-A-B-G-H; 950-C]
F Da/bir Singh v. State of U.P. (2004) 5 SCC 334 -
Followed.
Lakhjit Singh v. State of Punjab 1994 Suppl. (1) SCC
(Crl.) 173; Sanagaraboina Sreenu v. State of A.P. (1997) 5
G sec 348: 1997 (3) SCR 957 - relied on.
3.2. The concept of punishing the accused for a less
grave offence than the one for which he was charged is
not unique to the Indian Judicial System. It has its
relevancy even under the English jurisprudence under
H the concept of alternative verdicts. There is no absolute
RAFIQ AHMED@ RAFI v. STATE OF U.P. 921
bar or impediment, in law, in punishing a person for an A
offence less grave than the offences for which the
accused was charged during the course of the trial
provided the essential ingredients for adopting such a
course are satisfied. [Paras 29, 31) [956-H; 957-A-B; 958-
E-F] B
R v. Coutts (Appellant) 2006 UKHL 39 - referred to.
3.3. The instant case related with an offence
punishable under Section 396 IPC and in alternative with
an offence under Section 302 of the IPC. The offence C
under Section 396 consists of two parts: firstly, dacoity
by five or more persons, and secondly, committing of a
murder in addition to the offence of dacoity. If the
accused have committed both these offences, they are
liable to be punished with death or imprisonment for life D
or rigorous imprisonment for a term which may extend
to ten years and be liable to pay fine as well. Under
Section 302 IPC, whoever commits murder shall be
punished with death or imprisonment for life and shall
also be liable to pay fine. A conjoint reading of Sections E
396 and 302 IPC shows that the offence of murder has
been lifted and incorporated in the provisions of Section
396 IPC. In other words, the offence of murder punishable
under Section 302 and as defined under Section 300 will
have to be read into the provisions of offences stated F
under Section 396 IPC. In other words, where a provision
is physically lifted and made part of another provision, it
shall fall within the ambit and scope of principle akin to
'legislation by incorporation' which normally is applied
between an existing statute and a newly enacted law. G
The expression 'murder' appearing in Section 396 would
have to take necessarily in its ambit and scope the
ingredients of Section 300 of the IPC. There Is no scope
for any ambiguity. The provisions are clear and admit no
scope for appllcatlon of any other principle of H
922 SUPREME COURT REPORTS [2011] 11 S.C.R.
A interpretation except the 'golden rule of construction', i.e.,
to read the statutory language grammatically and
terminologically in the ordinary and primary sense which
it appears in its context without omission or addition.
These provisions read collectively put the matter beyond
B ambiguity that the offence of murder, is by specific
language, included in the offences under Section 396. It
will have the same connotation, meaning and ingredients
as are contemplated under the provisions of Section 302
IPC. [Paras 32-33] [958-G-H; 959-A-F]
c 3.4. This is admittedly a case of circumstantial
evidence and, thus, the evidence has to be examined in
that context. There is no dispute to the fact that the
charge under Sections 396 and 201 IPC were framed
against the accused. The trial court had acquitted the four
D accused but convicted the appellant for an offence under
Sections 302 and 201, IPC. [para 34] [959-G-H; 960-A-B]
3.5. PW2 and PW4 were the witnesses '11fhO had last
seen the deceased with the appellant. The statements of
E the Investigating Officer (PW11) and the witnesses.
including PW3, in whose presence the dead body was
recovered at the behest of the appellant, by means of
recovery memo are the other material pieces of evidence
which would complete the chain of events and point
F undoubtedly towards the guilt of the accused. The
accused, for the reasons best known to him, had taken
up a stand of complete denial in his statement recorded
under Section 313 Cr.P.C. and opted not to explain his
whereabouts at the relevant time. Furthermore, he was a
G regular taxi driver. It is true that the statement under
Section 313 Cr.P.C. cannot be the sole basis for
conviction of the accused but certainly it can be a
relevant consideration for the courts to examine,
particularly when the prosecution has otherwise been
H
RAFIQ AHMED @ RAFI v. STATE OF U.P. 923
able to es.tablish the chain of events. It was clearly A
established from the evidence on record that the
deceased was a regular trader and used to come to
Nehtaur from where he was picked up by the appellant
on the fateful day. These were certain definite
circumstances clearly indicating towards the involvement B
of the appellant in the commission of the crime. The
prosecution was able to establish its case beyond
reasonable doubt on the basis of the circumstantial
evidence. There was no significant link which was
missing in the case put forward by the prosecution. [para c
i 35) [961-D-H; 962-A]
Shyam Behari v. State of Uttar Pradesh AIR 1957 S.C.
320 - Followed.
4. No prejudice was caused to the appellant by his D
conviction for an offence under Section 302 IPC though
he was initially charged with an offence punishable
under Section 396 IPC read with Section 201 IPC. Further,
the nature of injuries namely three incised wounds, three
abrasions and severing of the trachea, caused by a E
sharp-edged weapon as noticed by the High Court
indicated that the accused knew that the injury inflicted
would be sufficient in the ordinary course of nature to
cause death. The 'prejudice' has to be examined with
reference to the rights and/or protections available to the F
accused. The incriminating evidence was clearly put to
the accused in his statement under Section 313 Cr.P.C.
The circumstances which constitute an offence under
Section 302 were literally put to him, as Section 302 IPC
itself is an integral part of an offence punishable under G
Section 396 IPC. The appellant was not able to
demonstrate any prejudice which the appellant has
suffered in his right to defence, fair trial and in relation to
the case of the prosecution. Once the appellant has not
suffered any prejudice, much less a serious prejudice, H
924 SUPREME COURT REPORTS [2011] 11 S.C.R.
A then the conviction of the appellant under Section 302
IPC cannot be set aside merely for want.of framing of a
specific/alternate charge for an offence, punishable under
Section 302 IPC. It is more so because the dimensions
and facets of an offence under Section 302 are
B incorporated by specific language and are inbuilt in the
offence punishable under Section 396 IPC. Thus, on the
application of principle of 'cognate offences', there was
no prejudice caused to the rights of the appellant. [para
38) [963-E-H;. 964-A-C]
c Case Law Reference:
1968 SCR 610 relied on Para 15
2006 Suppl. (9) SCR 466 relied on Para 18
D 2002 (3) Suppl. SCR 339 relied on Para 18
1999 (1) SCR 361 relied on Para 18
20Q5 (3) SCR 182 relied on Para 18
2005 (5) Suppl. SCR 629 relied on Para 18
E
2001 (1) SCR 514 relied on. Para 22
1955 SCR 1140 . Followed Paras 13, 22
2008 (12) SCR 113 relied on Para 22
F
1974 (1) SCR 489 relied on Para 22
1994 Suppl. (1) sec (Crl.) 173 relied on Para 27
1997 (3) SCR 957 relied on Para 27
G (2004) 5 sec 334 Followed Para 27
2001 (1) SCR 514 relied on Para 28
2006 UKHL 39 referred to Para 29
H AIR 1957 SC 3~0 Followed Paras 36, ',37
RAFIQ AHMED @ RAFI v. STATE OF U.P. 925
CRIMINAL APPELLATE JURISDICTION : Crimioal Appeal A
No. 656 of 2005.
From the Judgment & Order dated 29.~.2004 of the. High
Court of Judicature at Allahabad in Criminal Appeal No. 1887
of 1981. B
R. Anand Padmanabhan, Prit~vi Raj B.N., G. Ramakrishna
Prasad for the Appellant.
T.N. Singh, Rajeev Dubey, Kamlendra Mishra, Jatinder
Kumar Bhatia for the Respondent. C
'
The Judgment of the Court was delivered, by
SWATANTER KUMAR, J. 1. Fine distinctions of law, if
discerning, should normally be recognized and permitted to
operate in their respective fields. With the development of D
criminal jurisprudence, the law has recognized· the concept of
cognate charges besides alternative charges. The
differentiation between the offences from the same family in
contradistinction to the offences falling in different categories
have persuaded the courts to apply the principle of 'cognate E 1
offences' and punish the offender of a less grave offence
because the offence of greater gravity has not been proved
beyond reasonable doubt. This principle is to be applied
keeping in view the facts and circumstances of a given case
and notwithstanding the fact that no charge for such less grave F
offence had been framed against the offender. In the case in
hand, we are concerned with a similar question which arises
from the following facts:
All the five accused, namely, Rafiq Ahmad, Ahsan, G
lmamuddin, Arun Kumar and Yashwant Singh, according to the
prosecution, in the intervening night of 30th September, 1977
and 1st October, 1977 committed dacoity in Ambassador Car
No.UPS 7293 belonging to Rafiq Ahmad. While the car was
going on the pucca road from Nehtaur to Dhampur within the
H.
926 SUPREME COURT REPORTS [2011] 11 S.C.R.
A jurisdiction of thana Nehtaur, the accused had committed the
murder of Jagdish Prasad @ Jagdish Chandra @ Jagdish
Babu and thereafter thrown his body in a sugarcane field of one
lkrar Ahmad situated in Village Kashmiri, thana Nehtaur with
the intention of screening themselves from punishment for
B committing any offence. Shri Krishna Garg, uncle of the
deceased was carrying on ~he wholesale business of sugar,
Khandsari, flour, food grains etc. under the name of Mis. Sadri
Prasad Sunder Lal in Mohalla Bari Mandi, Dhampur (Bijnor).
This firm had branches in the name of 'Garg Brothers'. The firm
C used to sell the above products on credit to the customers at
Dhampur, Nagina, Sherkot, Sheohara, Haldaur and Nehtaur
and the deceased, Jagdish Prasad, used to go to Nehtaur
every Friday to realize money from them. On Friday, 30th
September, 1977, also he left for Nehtaur to collect money.
Ordinarily, he used to return home between 9.00 p.m. and
D 10.00 p.m. with collections roughly upto Rs. 10,000/-. Though,
Jagdish Prasad, on that day also had collected more than Rs.
· 8,000/- from the customers, but he did not return home that
night. The next morning, Shri Krishna Garg sent his Munim,
Ramesh Chandra to Nehtaur to enquire about Jagdish Prasad.
E The Munim returned and disclosed to Shri Krishna Garg the
above facts. After arrival of the Munim, Shri Krishna Garg left
Dhampur for Nehtaur along with Pyare Lal, Surendra Kumar,
Har Kishan and Kamlesh to enquire about Jagdish Prasad.
From the enquiries, it came to light that at about 8.00 p.m., the
F deceased Jagdish Prasad had occupied a taxi, in which some
persons were already sitting, at the Agency Chauraha, Nehtaur.
The matter was reported and after making an entry in the GD
on 1st October, 1977 at 2.30 p.m., SI K.L. Verma started
investigation and interrogated a number of persons including
G Shri Krishna Garg and Pyare Lal. Thereafter, a case was
registered under Section 364 of the Indian Penal Code (IPC).
On 2.10.1977, the investigation was taken up by Station Officer
(S.O.) Raj Pal Yadav and both Mr. Verma and Mr. Yadav left
the police station together for investigation and reached P.S.
H Dhampur. At about 9.00 pm, accused Rafiq Ahmad was
RAFIQ AHMED @ RAFI v. STATE OF U.P. 927
[SWATANTER KUMAR, J.]
arrested by the police along with his taxi No.UPS 7293. His A
arrest led to recovery of the taxi which was made in presence
of Pyare Lal and Surendra Kumar. During the course of the
investigation, the accused Rafiq Ahmad also made a
confessional statement before the investigating officer in
presence of Surendra Kumar and Pyare Lal that the dead body B
of the deceased was lying in the sugarcane fields near village
Kashmiri. The body of the deceased was, thus, recovered and
identified by Pyare Lal. SI K.L Verma (PW9) prepared the
inquest report and the body was subjected to post mortem by
Dr. R.8. Saxena (PW8), the Medical Officer. c
On 3rd October, 1977, the accused Ahsan and his brother
lmamuddin were arrested with the help of Zamal Ahmad @
Khan Zamaloo and Sattar. A gold ring was recovered from the
possession of Ahsan. These arrests were effected at about
9.00 pm. Similarly, the accused Yashwant Singh was arrested D
by the police from the railway platform at 1.00 am on 2nd
October, 1977.
We may refer to the post-mortem report and the ante-
mortem injuries found by Dr. Saxena (PW8) on the body of the E
deceased which are as follows :
"1. Incised wound with chopping of left ear vertically
oblique ~ith Y:i part of ear missing.
2. Incised wound oblique from above down wards F
below left side angle of jaw to upper neck 1/1/
4"X%"XW'.
3. Incised wound 6"X1"X bone deep at front of neck
just above Adam's cartilage. G
4. Abrasion Y4" X Y4" on back of both shoulders.
5. Abrasion 1/8" X Y4" on back of right elbow joint.
H
928 SUPREME COURT REPORTS [2011) 11 S.C.R.
A 6. Abrasion %" X %" on outer side and back of left
elbow.
In the opinion of Dr. Saxena, death was caused on
account of respiratory failure and hemorrhage
1
resulting from severing of trachea."
B
fhe investigation was completed and the charge-sheet in
accordance with the provisions of Section 173 of the Criminal
Procedure Code (for short 'Cr.P.C.') was filed before the court
of competent jurisdiction. The accused were committed to the
C Court of Sessions and tried in accordance with law.
The learned Trial Court having considered the material and
the report submitted to it in terms of Section 173 of the Cr.P.C.
and vide order dated 11th September, 1979 framed the
0 following charge against all the accused, including the present
appellant, Rafiq Ahmad:
"S.T. No.3/78
State VS. Rafiq Etc.
Charge
E
I Jawant singh Ill additional Sessions Judge, Bijnour
hereby charge you Rafiq, Ahsan, lmamuddin, Arun Kumar
and Yashwant Singh accused as follows: -
That you in the night of 30-9-77 committed dacoity in Taxi
F
No. UPS 7273 while it was running on Nehtaur to Dhampur
road and that in the commission of said dacoity murder
was committed by you of one jagdish prashad and that you
thereby committed an offence punishable u/s 396 IPC and
within my cognizance And I hereby direct that you be tried
G by me on the said charge.
Dt.11-9-79 Sd/- Judge
H
RAFIQ AHMED @ RAFI v. STATE OF U.P. 929
[SWATANTER KUMAR, J.]
Charge read over and explained in Hindi to the accused A
who pleaded not guilty.
Sd/- Judge
Sd/- Rafiq,
Sd/-Ahsan,
Sd/- lmamuddin, B
Sd/- Arun Kumar
Sd/- Yashwant Singh"
This charge came to be amended by the learned Tria~
Court and the amended charge read as under:
c
" S.T. No. 3/78
State VS. Rafiq Etc.
Amended Charge
I Jaswant singh Ill additional Sessions Judge, Bijnour
hereby charge you Rafiq, Ahsan, lmamuddin, Arun Kumar D
and Yashwant Singh accused as follows: -
Firstly that you along with one another during the night of
30-9-77 and 1-10-77 committed dacoity in Ambassador
Car No. UPS 7293 belonging to rafiq accused while it was E
going from Nehtaur to Dhampur on the pucca road within
the circle of P.S: Nahtaur District Bijnaur and that in the
commission of the said dacoity, murder of jagdish prashad
was committed by you and that you thereby committed an
offence punishable under Section 396 IPC and within the
cognizance of this court. F
Secondly - that you along with one another during the night
of 30-09-77 and 1-10-77 in the area of village Kashmiri
P.S. Nehtaur Dist. Bijnore knowing or having reason to
believe that an offence U/s 396 IPC punishable with death G
or imprisonment for life has been committed did cause
evidence of the said offence to disappear by secreting the
dead body of jagdish prashad in the sugar cane field of
lkrar Ahmad with the intention of screening yourself from
legal punishment ahd thereby committed an offence H
930 SUPREME COURT REPORTS [20111 11 s.c~R
A punishable u/s 201 IPC and with the cognizance of this
court.
And I hereby direct that you be tried by this court on the
said charge
B 25-2-80 Sd/- Judge
Charge read over and explained in Hindi to the accused
who pleaded not guilty.
Sd/- Judge
c
Sd/- Rafiq,
Sd/- Ahsan,
Sd/- lmamuddin,
Sd/- Arun Kumar
Sd/- Yashwant Singh"
D
The prosecution examined as many as 12 witnesses to
prove its case. Besides the statement of these witnesses,
prosecution had also placed reliance on Exhibits Ka-1 to Ka-
23. Incriminating evidence against the accused which came on
E record during the course of the trial was put to the accused
whose statement under Section 313 of the Cr.P.C. was
recorded by the Court on 20th February, 1981. It may be stated
here that in his statement, accused Rafiq Ahmad denied his
presence at the place of occurrence and stated that the
F witnesses being the relatives of the deceased were deposing
against the appellant. The accused had also led defence and
examined two witnesses, namely, Naik Singh (DW1) and Shri
J.P. Singh (DW2) and placed number of documents on record.
Tl'le Trial Court, by a detailed judgment dated 17th August,
G 1981, came to the conclusion that Rafiq Ahmad was guilty of
charge under Sections 302 and 201 IPC under which the
accused was liable for conviction and punishment. The Court
further held that Ahsan was guilty of a charge under Section
411 IPC but acquitted him and the three other accused, namely,
H lmamuddin, Arun Kumar and Yashwant Singh under Section
396 IPC by giving them benefit of doubt. The Court awarded
RAFIQ AHMED @ RAFI v. STATE OF U.P. 931
[SWATANTER KUMAR, J.]
rigorous imprisonment for life to Rafiq Ahmad under Section A
302 IPC and seven years rigorous imprisonment under Section
201 IPC. Both the sentences were ordered to run concurrently.
The Trial Court ordered the accused Ahsan to undergo rigorous
imprisonment for a period of one year and to pay a fine of
Rs.500/- under Section 411, IPC and in default to undergo B
imprisonment for fi.Jrther period of six months.
Accused Rafiq Ahmad, dissatisfied with the judgment of
the Trial Court, preferred an appeal before the High Court.
Ahsan also challenged his conviction and sentence. Both these
appeals were heard and disposed of by the High Court by a C
common judgment. The appeal filed by Rafiq Ahmad was
dismissed. His conviction and sentence was maintained while
the appeal preferred by Ahsan was accepted and he was
acquitted even of the charge under Section 411 IPC.
D
Rafiq Ahmad, in the present appeal, has impugned the
judgment of the High Court. ·
2. The entire emphasis of the submissions made on behalf
of the appellant is primarily founded on determination of a
question of law, which, if answered in favour of the appellant, E
according to the learned counsel appearing for the appellant,
would entitle the appellant to an order of acquittal. The argument
is that the appellant was charged for an offence under Section
396 IPC and without reformulation/alteration of the charge, the
appellant has been convicted for an offen.ce under Section 302 F
IPC. This according to the learned counsel, has deprived the
appellant of a fair opportunity of defence and has caused him
serious prejudice. Section 302 IPC is a graver offence than an
offence punishable under Section 396 of the IPC and as such
the entire trial and conviction of the appellant is vitiated in law. G
3. It is also contended that the learned trial court as well
as the High Court have erred in fa~t and in law, have failed to
appreciate the evidence in its correct perspective and also that
there are serious contradictions between the statements of the
witnesses. It is also urged that this being a case of H
932 SUPREME COURT REPORTS [2011) 11 S.C.R.
A circumstantial evidence, the prosecution has failed to prove the
chain of events, pointing towards the guilt of the accused.
Therefore, the judgments of the courts below are liable.to be
set aside.
4. On the contra, it is contended on behalf of the State that
8
despite the present case being a case of circumstantial
evidence, the prosecution has been able to establi!?h its case
beyond any reasonable doubt. The appellant has suffered no
prejudice, whatsoever, because of his conviction under Section
302 of the IPC.
c
5. Before we proceed to examine the merit or otherwise
of the above rival contentions, it will be important for us to refer
to the relevant provisions of the IPC at this stage itself. The
relevant provisions read as under:-
D
"302.Punishment for murder.-Whoever commits murder
shall be punished with death, or imprisonment for life, and
shall also be liable to fine ..
396. Dacoity with murder.-lf any one of five or more
E persons, who are conjointly committing dacoity, commits
murder in so committing dacoity, every one of those
persons shall be punished with death, or imprisonment for
life, or rigorous imprisonment for a term which may extend
to ten years, an~ shall also be liable to fine."
F
6. As is evident from the amended charge reproduced
earlier, the appellant was charged with an offence under
Sections 396 and 201 of the IPC. It is not necessary for us to
examine the charge framed against the other co-accused as
G all of them have been acquitted and the judgment of acquittal
has not been challenged before this Court.
7. Section 391 IPC explains the offence of 'dacoity'. When
five or more persons conjointly commit or attempt to commit a
robbery, or where the whole number of persons conjointly
H committing or attell)pting to commit a robbery, and persons
RAFIQ AHMED @ RAFI v. STATE OF U.P. 933
[SWATANTER KUMAR, J.]
present and aiding such commission and attempt amount to A
five or more; every person so committing; attempting or aiding,
is said to cornmit 'dacoity'. Under Sesti6h 39~ lf'C, thfi! tiffel'!C;.'e
of 'robbery' simplleitor is puhl&habl~ with rigc>rbUs
imprisonment which may extend to ten years or 14 years
iCfepending upon the facts of a given case. Section 399 IPC B
'brings within its ambit a murder committed along with 'dacoity'.
In terms of this provision, if any one of the five or more persons,
who are conjointly committing dacoity, commits murder in so
committing dacoity, every one of those persons shall be
punished with death or imprisonment for life or rigorous c
'imprisonment for a term which may extend to ten years and shall
also be liable to fine.
·8. On a plain reading of these provisions, it is clear that to
constitute an offence of 'dacoity', robbery essentially should be
committed by five or more persons. Similarly, to constitute an 0
offence of 'dacoity with murder' any one of· the five or more
persons should commit a murder while committing the dacoity,
then every one of such persons so committing, attempting to
commit or aiding, by fiction of law, would be deemed to have
committed the offence of murder and be liable for punishment E
provided under these provisions depending upon the facts and
circumstances of the case.
~. Section 299 defines 'culpable homicide'. Whoever
causes death by doing an act with_ the intention of causing F
death, or with the intention of causing such bodily injury as is
likely to cause death, or with the knowledge that he is likely by
such act to cause death, commits the offence of culpable
homicide. Except the exceptions provided under Section 300
IPC, culpable homicide is murder if the act by which death is G
caused is done with the intention of causing death. The intention
to cause death is the primary distinguishing feature between
these two offences. It is a fine but clear line of distinction.
10. In terms of Section 300 IPC, except in the cases stated
n that provision, culpable homicide is murder if the act by which H
934 SUPREME COURT REPORTS (2011) 11 S.C.R.
A the death is caused is done with the intention of causing death
or in terms of any of the circumstances stated secondly, thirdly
and fourthly respectively. The law clearly marks a distinction
between culpable homicide amounting to murder and culpable
homicide not amounting to murder. Another distinction between
B Sections 302 and 396 is that under the latter, wide discretion
is vested in the courts in relation awarding of punishment. The
court, in exercise of its jurisdiction and judicial discretion in
consonance with the established principles of law can award
sentence of ten years with fine or even award sentence of life
c imprisonment or sentence of death, as the case may be while
under Section 302, the court cannot, in its discretion, award
sentence lesser than life imprisonment.
11. The ingredients of both these offences, to some extent,
are also different inasmuch as to complete an offence of
D 'dacoity' under Section 396 IPC, five or more persons must
conjointly commit the robbery while under Section 302 of the
IPC even one person by himself can commit the offence of
murder. But, as already noticed, k attract the provisions of
Section 396, the offence of 'dacoity' must be coupled with
E murder. In other words, the ingredients of Section 302 become
an integral part of the· offences punishable under Section 396
of the IPC. Resultantly, the distinction with regard to the number
of persons involved in the commission of the crime loses its
significance as it is possible that the offence of 'dacoity' may
F not be proved but stil!rthe offence of murder couid be
established, like in the present case. Upon reasonable analysis
of the language of these.provisions, it is clear that the Court
has to keep in mind the Jngredients ~hich shall constitute a
criminal offence within the meaning of the penal section. This
G is not only essential in the case of the offence charged with but
even where there is comparative study of different penal
provisions as the accused may have committed more than one
offence or even offences of a graver nature. He may finally be
punished for a lesser offence or vice versa, if the law so permits
H and the requisite ingredients are satisfied.
RAFIQ AHMED @ RAFI v. STAT.E OF U.P. 935
[SWATANTER KUMAR, J.]
12. So far the judicial pronouncements show a consistent A
trend that wherever an accused is charged with a grave offence,
he can be punished for a less grave offence finally, if the grave
offence is not proved. For example, a person charged with an
offence under Section 302 of the IPC may finally be convicted
only for an offence under Section 304 Part II where the B
prescribed punishment is lesser and the consequences of
conviction are less serious in comparison to a conviction under
Section 302. But even in those cases, the Court has to be
cautious while examining whether the ingredients of the
offences are independently satisfied. If the ingredients even of c
a lesser offence are not satisfied then it may be difficult in a
given case for the court to convict the person for an offence of
a less grave nature. There can be cases where it may not be
possible at all to punish a person of a less grave offence if its
ingredients are completely different and distinct from the grave
0
offence. To deal with this aspect illustratively, one could say that
a person who is charged with an offence under Section 326
may not be liable to be convicted for an offence under Section
406 IPC because their ingredients are entirely distinct, different
and have to be established by the prosecution on its own
strength. In other words, the accused has to be charged with a
E
grave offence which would take within its ambit and scope the
ingredients of a less grave offence. The evidence led by the
prosecution for a grave offence, thus, would cover an· offence
of a less gr~ve nature. But it is essential that the offence for
which the Court proposes to punish the accused, is established F
beyond reasonable doubt by the prosecution.
i 911; VO -
13. A'Constitution Bench of this Court in the case of Willie
(William) Slaneylv. Stat~ of Madhya Pradesh [AIR 1956 SC
116] dealt with a question as to whether omission to frame a G
charge was a curable irregularity. In that case the accused was
-charged for committing an offence punishable under Section
302 IPC but the Court finally convicted him of an offence
punis_hable under Section 304, Part' II. The Court,: while
·examining if th~ accused had been prejudiced in his de.fence H
936 SUPREME COURT REPORTS [2011] 11 S.C.R.
A and the validity of his conviction, held as under:
"6. Before we proceed to set out our answer and examine
the provisions of the Code, we will pause to observe that
the Code is a code of procedure and, like all procedural
laws, is designed to further the ends of justice and not to
B
frustrate them by the introduction of endless technicalities.
The object of the Code is to ensure that an accused person
gets a full and fair trial along certain well-established and
well-understood line that accord with our notions of natural
justice. If he does, if he is tried by a competent court, if he
c is told and clearly understands the nature of the offence
for which he is being tried, if the case against him is fully
and fairly explained to him and he is afforded a full and
fair opportunity of defending himself, then, provided there
is substantial compliance with the outward forms of the law,
D mere mistakes in procedure, mere inconsequential errors
and omi~sions in the trial are regarded as venal by the
Code and the trial Ys not vitiated unless the accused can
show substantial prejudice. Thal, broadly speaking, is the
basic principle on which the Code is based.
E
7. Now here, as in all procedural laws, certain things are
regarded as vital. Disregard of a provision of that nature
is fatal to the trial and at once invalidates the conviction.
Others are not vital and whatever the irregularity they can
F be cured; and in that event the conviction must stand
unless the Court is satisfied that there was prejudice.
Some of these matters are dealt with by the Code and
wherever that is the case full effect must be given to its
provisions. The question here is, does the Code deal with
the absence of a charge and irregularities in it, and if so,
G
into which of the two categories does it place them ? But
before looking into the Code, we deem it desirable to refer
to certain decisions of the Privy Council because much of
the judicial thinking in this country has been moulded by
. their observations. In our opinion, the general effect of
H those decisions can be summarised as follows.
RAFIQ AHMED @ RAFI v. STATE OF UP. 937
[SWATANTER KUMAR, J.]
xxx xxx xxx A
17. It is possible (though we need not so decide in this
case) that the recent amendment to section 537 in the
Code of Criminal Procedure (Amendment) Act XXVI of
1955, where mis-joinder of charges has been placed in 8
the curable category, will set at rest the controversy that
has raged around the true meaning of N. A. Subramania
Iyer v. King-Emperor. In any case, our opinion is that the
real object of the Code Is to leave these matters to the
discretion and vigilance of the courts. Slightly to alter the C
language of the Privy Council in Babula/ Choukhani v.
The King-Emperor (1938] L.R. 65 lndAp 158, we would
say·
"It must be hoped, and indeed assumed, that
magistrates and judges will exercise their D
jurisdiction fairly and honestly. Such is the implied
condition of the exercise of judicial power. It they
do not, or if they go wrong in fact or in law, the
accused has prima facie a right of recourse to the
superior courts by way of appeal or revision; and E
the cases show how vigilant and resolute the High
Courts are in seeing that the accused is not
prejudiced or embarrassed by unsubstantial
departures from the Code and how closely and
jealously the Supreme Court guards the position of F
the accused. These safeguards may well have
appeared to the Legislature to be sufficient when
they enacted the remedial provisions of the Code
and have now left them substantially unaltered in the
new Code recently introduced".
This, we feel, is the true intent and purpose of section
S37(a) which covers every proceeding taken with
jurisdiction in the general phrase "or other proceedings
under this Code". It is for the Court in all these cases to
determine whether there has been prejudice to the H
938 SUPREME COURT REPORTS [2011] 11 S.C.R.
A accused; and in doing so to bear in mind that some
violations are so obviously opposed to natural justice and
the true intendment of the Code that on the face of them
and without anything else they must be struck down, while
in other cases a close examination of all the circumstances
B will be called for in order to discover whether the accused
has been prejudiced.
xxx xxx xxx
In adjudging the question of prejudice the fact that the
c absence of a charge, or a substantial mistake in it, is a
serious lacuna will naturally operate to the benefit of the
accused and if there is any reasonable and substantial
doubt about whether he was, or was reasonably likely to
have been, misled in the circumstances of any particular
D case, he is as much entitled to the benefit of it here as
elsewhere; but if, on a careful consideration of all the facts,
prejudice, or a reasonable and substantial likelihood of it,
is not disclosed the conviction must stand; also it will
always be material to consider whether objection to the
E nature of the charge, or a total want of one, was taken at
an early stage.
If it was not, and particularly where the accused is
defended by 'AIR 1930 PC 57 (2) at p.58 (G)', it may in a
given case be proper to conclude that the accused was
F satisfied and knew just what he was being tried for and
knew what was being alleged against him and wanted no
further particulars. provided it is always borne in mind that
"no serious defect in the mode of conducting a criminal trial
can be justified or cured by the consent of the advocate
G of the accused" 'AIR 1927 PC 44 at pp.46-47 & 49 (F)'.
But these are matters of fact which ill be special to
each different case and no conclusion on these questions
of fact in any one case can ever be regarded as a
H precedent or a guide for a conclusion of fact in another,
RAFIQ AHMED @ RAFI v. STATE OF U.P. 939
[SWATANTER KUMAR, J.]
because the facts can never be alike in any two cases A
however alike they may seem. There is no such thing as
a judicial precedent on facts though counsel, and even
judges, are sometimes prone to argue and to act if there
were."
B
14. The Court, while laying down the above law,
significantly noticed that the Code is a code of procedure and
like all procedural laws is designed to further the ends of justice
and not to frustrate them by the introduction of endless
technicalities. The object of the code is to ensure that an C
accused person gets a full and fair trial along with certain well-
established and well-understood canons of law that accord with
the notions of natural justice.
15. In the case of Iman Ali & Anr. v. State of Assam, [AIR
1968 SC 1464], the Court had the occasion to explain the D
distinction between the scope, liability and punishment for an
offence under Section 396, as opposed to Section 302 IPC.
The Court noticed that the offence under Section 396 was no
less heinous than an offence under Section 302 though in the
latter case, it was obligatory on the part of the Court to record E
reasons for not awarding death sentence. The Court while
sustaining the enhancement of punishment from sentence of life
imprisonment to sentence of death by the High Court on the
ground that there was a direct evidence to show that the
accused had committed the alleged murder, held as under: F
"Learned counsel for the appellants, in challenging the
justification for the order of enhancement of sentence by
the High Court, relied on the principle laid down by this
court in Dalip Singh v. State of Punjab, 1954 SCR 145
at p.156 =(AIR 1953 SC 364 at pp. 367-368,1 which was G
explained in the following words:-
"ln a case of murder, the death sentence should
ordinarily be imposed unless the trying Judge for
reasons which should normally be recorded H
... ·-
940 SUPREME COURT REPORTS [2011) 11 S.C.R.
A considers it proper to award the lesser penalty. But
the discretion is his and if he gives reasons on
which a jud~cial mind could properly be found, an
appellate court should not interfere. The power to
enhance a sentence from transportation to death
B should very rarely be exercised and only for the
strongest possible reasons. It is not enough for an
appellate court to say, or
think, that if left to itself It
would have awarded the greater penalty because
the discretion does not belong to the appellate court
c but to the trial Judge and the only ground on which
an appellate court can interfere is that the
discretion has been improperly exercised, as for
example, where no reasons are given and none can
be inferred from the circumstances of the case, or
D where the facts are so gross that no normal judicial
. mind would have awarded the lesser penalty."
It appears to us, however, that, in the present case, this
principle is of no assistance to the appellants for
challenging the step taken by the High Court. This court
E cautioned ·the appellate court against interfering if the
discretion of the trying Judge is exercised for reasons
recorded by him and if· it appears from the reasons that
he had exercised a judicial mind in not awarding the
sentence of death, !n the present case, as mentioned by
the Hl9h Court and c:ts is appll!rent from the judgment of
th~ Court of Sessi<:m, the trial court awarded the sentence
gf Imprisonment for life without giving any reasons at all
for adoptin9 thitt cQursl!9. It is true that the app~ll;:ints were
flot QC>l'!Victec:t in the present caise for the offence of m1.1rder
slmpliPit~r under Section 302. IPC: put that, in our opinion,
iis imrnateri"I, The conviction of the i:ippellants under
$@~tion S96 IPC, wa~ not b;;1~!!!d on eonstructive liability as
momberE$ of the gang of dacolts. There was clear finding
by the court of Session which has been upheld by the High
H Court that each of these appellants committed a cold-
RAFIQ AHMED @ RAFI v. STATE OF U.P. 941
[SWATANTER KUMAR, J.)
blooded murder by shooting two inmates of the house A
simply with the object of facilitating commission of dacoity
by them. Those persons were shot and killed even though
they had not even tried to put up any resistance. The
offence under Section 396 IPC, was therefore, no less
heinous than an offence under Section 302 IPC. In these B
circumstances, when the court of Session gave no reason
at all for not awarding the sentence of death and for
sentencing them to imprisonment for life only, it cannot be
held that the High Court was not justified in interfering with
that order. c
Learned counsel in this connection refereed us to a
decision of a Division Bench of the Allahabad High Court
in Lal Singh v. Emperor A.l.R. 1938 Alld. 625, where it
was held:
D
"We do not consider that as a general rule a
sentence of death should necessarily follow a
conviction under s. 396, l.P.C., and this Section
differs from s. 302, l.P.C., in that respect. The rule
is under s. 302, that a sentence of death should E
follow unless reasons are shown for giving a lesseL--
sentence. No such rule applies to s. 396, l.P.C."
Again, we do not think that the learned Judges of the
Allahabad High Court intended to lay down that, even in F
cases where a person is convicted for the offence under
s. 398, l.P.C., and there is clear evidence that he himself
had committed a cold-blooded murder in committing the
dacoity, a sentence of death should not follow, Clearly, the
vi~w expreseed was meant to apply to those cases where
there could be no definite finding as to which person G
committed the murder and all the members of the gang are
held constnJctlvely guilty of the offence punishable under
s. 396, l.P.C. A principle enunciated for such a situation
cannot be applied to a case where there is direct evidence
that a particular accused committed the murder himself, H
942 SUPREME COURT REPORTS f2011] 11 S.C.R.
A as is the finding in the present case."
17. With the passage of time more and more such cases
came up for consideration of this Court as well as the High
Courts. The development of law has not changed the basic
principles which have been statedln the judgments afore-
8
referred. Usually an offence of grave nature includes in itself the
essentials of a lesser but cognate offence. In other words, there
are classes of offences like offences against the human body,
offences against property and offences relating to cheating,
misappropriation, forgery etc. In the normal course of events,
C the question of grave and less grave offences would arise in
relation to the offences falling in the same class and normally
may not be inter se the classes. It is expected of the prosecution
to collect all evidence in accordance with law to ensure that the
prosecution is able to establish the charge with which the
D accused is charged, beyond reasonable doubt. It is only in
those cases, keeping in view the facts and circumstances of a
given case and if the court is of the view that the grave offence
has not been established on merits or for a default of technical
nature, it may still proceed to punish the accused for an offence
E of a less grave nature and content.
18. In the case of Anil @ Raju Namdev Patil vs.
Administration of Daman & Diu and Anr. [2006 Suppl. (9) :SCR
466], the Court had to deal with a situation where the accused,
F a car driver had kidnapped a child of five years for the purpose
of demanding ransom and later killed the child. The accused
had been charged for an offence punishable under Sections
364, 302 and 201 IPC, but was finally convicted for an offence
punishable under Section 364-A and was awarded sentence
G of death. This Court held that there was prejudice caused to
the appellant and the sentence was modified from death to
rigorous imprisonment for life with conviction under Section 364
IPC. The Court, besides recording the above findings on the
merits of the case noticed the precedents in relation to non-
framing of charge. The Bench referred to various judgments of
H
RAFIQ AHMED @ RAFI v. STATE OF U.P. 943
[SWATANTER KUMAR, J.]
this Court in K. Prema S. Rao and Anr. v. Yad/a Srinivasa Rao A
and Ors. [(2003) 1 SCC 217], Kammari Brahmaiah and Ors.
v. Public Prosecutor, High Court of A.P. [(1999) 2 sec 522],
Dalbir Singh v. State of U.P. [(2004 5 sec 334],.
Kamalanantha and Ors. v. State of T.N. [(2005 5 sec 194],
Harjit Singh v. State of Punjab [(2006 1 SCC 463] and B
recapitulated the principles of law stated in these judgments
and stated the following precepts of law which would govern
such cases:
'The propositions of law which can be culled out from the e
aforementioned judgments are:
(i) The appellant should not suffer any prejudice
by reason of misjoinder of charges.
(ii) A conviction for lesser offence is o
permissible.
(iii) It should not result in failure of justice.
(iv) If there is a substantial compliance,
misjoinder of charges may not be fatal and E
such misjoinder must be arising out of mere
misjoinder to frame charges.
The ingredients for commission of offence of Section 364
and 364-A are different. Whereas the intention to kidnap F
in order that he may be murdered or may be so disposed
of as to be put in danger as murder satisfied the
requirements of Section 364 of the Indian Penal Code, for
obtaining a conviction for commission of an offence u11der
Section 364-A thereof it is necessary to prove that not only G
such kidnapping or abetment has taken place but
thereafter the accused threatened to cause death or hurt
to such person or by his conduct gives rise to a reasonable
apprehension that such person may be put to death or hurt
or causes hurt or death to such person in order to compel
H
944 SUPREME COURT REPORTS (2011] 11 S.C.R.
A the government or any other person to do or abstain from
c;loing any act or to pay a ransom.
It was, thus, obligatory on the part of the learnec;I
Sessions Judge, Daman, to frame a charge which would
answer the description of the offence envisaged under
B
Section 364-A of the Indian Penal Code. It may be true that
the kidnapping was done with a view to get ransom but
the same should have been put to the appellant while
framing a charge. The prejudice to the appellant is
apparent as the ingredients of a higher offence had not
c been put to him while framing any charge.
It is not a case unlike Kammari Brahma/ah (supra)
where the offence was of a lesser gravity, as has been
observed by Shah, J."
D
19. In light of the above principles, let us now examine the
meaning of 'prejudice'. The expression has been defined in
Black's Law Dictionary (Eighth Edition), as follows:
"prejudice, 1. Damage or detriment to one's legal rights
E or claims. See dismissal with prejudice, dismissal without
prejudice under DISMISSAL.
Legal prejudice. A condition that, if shown by a party, will
usu. defeat the opposing party's i:iction: esp. a condition
F that, if shown by the defendant, will defeat a plaintiff's
motion to dismiss a case without prejudice. The defendant
may show that dismissal will deprive the defendant of a
substantive property right or preclude the defendant from
raising a defense that will be unavailable or endan9ered
in a second suit.
Undue prejudice. The harm resulting from a fact-trier's
being exposed to evidence that is persuasive but
inadmissible (such as evidence of prior criminal conduct)
or that so arouses the emotions that calm and logical
H reasoning is abandoned.
RAFIQ AHMED @ RAFI v. STATE OF U.P. 94S
[SWATANTER KUMAR, J.]
2. A preconceived judgment formed without a factual A
basis; a strong bias"
20. When we speak of prejudice to an accused, it has to
be shown that the accused has suffered some disability or
detriment in the protections available to him under the Indian 8
criminal jurisprudence. It is also a settled canon of criminal law
that this has occasioned the accused with failure of justice. One
of the other cardinal principles of criminal justice administration
is that the courts should make a close examination to ascertain
whether there was really a failure of justice or whether it is only C
a camouflage, as this expression is perhaps too pliable. With
the developmen1 of law, Indian courts have accepted the
following protections to and rights of the accused during
investigation and trial :
(a) The accused has the freedom to maintain silence D
during investigation as well as before the Court. The
accused may choose to maintain silence or make
complete denial even when his statement under
Section 313 of the Code of Criminal Procedure is
being recorded, of course, the Court would be E
entitled to draw inference, including adverse
inference, as may be permissible to it in
accordance with law;
(b) Right to fair trial
F
(c) Presumption of innocence (not guilty)
(d) Prosecution must prove its case beyond'
reasonable doubt.
21. Prejudice to an accused or failure of justice, thus, has G
to be examined with reference to these aspects. That alone,
probably, is the method to determine with some element of
certainty and discernment whether there has been actual failure
of justice. 'Prejudice' is incapable of being interpreted in its
H
946 SUPREME COURT REPORTS [2011] 11 S.C.R.
A generic sense and applied to criminal jurisprudence. The plea
of prejudice has to be in relation to investigation or trial and
not matters falling beyond their scope. Once the accused is able
to show that there is serious prejudice to either of these
aspects and that the same has defeated the rights available
B to him under the criminal jurisprudence, then the accused can
seek benefit under the orders of the Court.
22. Right to fair trial, presumption of innocence until
pronouncement of guilt and the standards of proof, i.e., the
prosecution must prove its case beyond reasonable doubt are
C the basic and crucial tenets of our criminal jurisprudence. The
Courts are required to examine both the contents of the
allegation of prejudice as well as its extent in relation to these
aspects of the case of the accused. It will neither be possible
nor appropriate to state such principle with exactitude as it will
D always depend on the facts and circumstances of a given case.
Therefore, the Court has to ensure that the ends of justice are
met as that alone is the goal of criminal adjudication. Thus,
wherever a plea of prejudice is raised by the accused, it must
be examined with reference to the above rights and safeguards,
E as it is the violation of these rights alone that may result in
weakening of the case of the prosecution and benefit to the
accused in accordance with law.
During conduct of trial, framing of a charge is an important
F function of the court. Sections 211 to 224 of Chapter XVII of
the Code of Criminal Procedure, 1973 have been devoted by
the Legislature to the various facets of framing of charge and
.other related matters thereto. Under Section 211, the charge
should state the offence with which the accused is charged and
G should contain the other particulars specified in that section. In
terms of Section 214, 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. Another significant provision is Section
215 which states that no error in stating either the offence or
H
RAFIQ AHMED @ RAFI v. STATE OF U.P. 947
[SWATANTER KUMAR, J.]
the particulars required to be stated in the charge, and no A
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. Further, the court has been
vested with the power to alter the charge. There could be trial B
of more than one offence together and there could even be joint
trial of the accused. We have referred to these provisions
primarily to indicate that the purpose of framing of a charge is
to put the accused at notice regarding the offence for which he
is being tried before the court of competent jurisdiction. For c
want of requisite information of offence and details thereof, the
accused should not suffer prejudice or there should not be
failure of justice, as held by this Court in the case of
Shamnsaheb M. Multtani v. State of Karnataka [(2001) 2 SCC
577]. The requirements of putting the accused at notice and
0
there being a charge containing the requisite particulars, as
contemplated under Section 211, has to be read with reference
to Section 215 of the Code. Every omission would not vitiate
the trial. This Court has settled this position in the case of Willie
(William) Slaney v. State of Madhya Pradesh [AIR 1956 SC E
116] wherein the Court held as under :
"36. Sections 222 to 224 deal with the form of a charge
and explain what a charge should contain. Section 225
deals with the effect of errors relating to a charge. Sections
233 to 240 deal with the joinder of charges. Sections 535 F
and 537 are in the Chapter that deals with irregularities
generally and these two sections deal specifically with the
charge and make it clear that an omission to frame a
charge as well as irregula~ities, errors and omission in a
charge are all irregularities that do not vitiate or invalidate G
a conviction unless there is prejudice.
37. But, apart from that, if we examine the learned
counsel's contention mor~ closely, the fallacy in his
argument becomes clear. Sections 237 and 238 deatwith
,,~ H
948 SUPREME COURT REPORTS [2011] 11 S.C.R.
A cases In which there is a charge to start with and then they
go on to say that in certain cases the trial can proceed
beyond the matter actually charged and a conviction for an
offence disclosed in the evidence in that type of case will
be good despite the absence of a charge in respect of it.
s But what are those cases? Only those in which the
additional charge or charges could have been framed from
the start; and that is controlled by Sections 234, 235 and
239 which set out the rules about joinder of charges and
persons."
c Dinesh Seth v. State of NCT of Delhi [(2008) 14 SCC 94]
was a case where the accused was charged with an offence
under Section 3048 read with Section 34 IPC but was finally
convicted for an offence under Section 498A. The plea of
prejudice, on the ground that no specific charge under Section
D 498A was framed and the Court, while referring to the.facts and
circumstances of the case and the cross-examination of the
prosecution witnesses found that it was unmistakably shown
that the defence had made concerted efforts to discredit the
testimony of the alleging cruelty,.was rejected and the accused
E was punished for an offence under Section 498A. This clearly
demonstrates the principle that in all cases, non-framing of
charge or some defect in drafting of the charge per se would
not vitiate the trial itself. It will have to be examined in the facts
and circumstances of a given case. Of course, the court has
F to keep in mind that the accused 'must be' and not merely 'may
be' guilty of an offence. The mental distance between 'may be'
and 'must be' is long and divides vague conjectures fmm sure
conclusions. {Shivaji Sahebrao Bobade & Anr. v. State of
Maharashtra [AIR 1973 SC 2622)}.
G · 23. Having stated the above, let us now examine what kind
of offences may fall in the same category except to thE! extent
of 'grave or less grave'. We have already noticed that a person
charged with a heinous or grave offence can be punished for
a less grave offence of cognate nature whose essentials are
H
RAFIQ AHMED @ RAFI v. STATE OF U.P. 949
[SWATANTER KUMAR, J.]
satisfied with the evidence on record. Examples of this kind A
'(
have already been noticed by us like a charge b'!ling framed
under Section 302 IPC and the accused being punished under
Section 304, Part I or 11, as the circumstances and facts of the
case may demand. Furthermore, a person who is charged with
an offence under Section 326 IPC can be finally convicted for 8
an offence of lesser gravity under Section 325 or 323 IPC, if
the facts of the case so establish. Alike or similar offences can
be termed as 'cognate offences'. The word 'cognate' is a term
primarily used in civil jurisprudence particularly with reference
to the provisions of the Hindu Succession Act, 1956 where C
Section 3(c) has used this expression in relation to the
descendants of a class of heirs and normally the term is used
with reference to blood relations. Section 3(c) of the Hindu
Succession Act defines "cognat~" as follows:
"one person is said to pe a cognate of another if the two D
are related by blood or adoption but not wholly through
males."
24. The Encyclopedia Law Lexicon, explain the word
'cognate' in relation to civil law as follows: E
"Cognate. - According to Hindu Law it is a class of heirs,
descended or borrowed from the same earlier form.
It means blood relation including female relation.
F
Word "cognate" literally means "akin in nature", Ram Briksh
v. State, 1978 All Cri C 253"
25. This expression has also been recognized and applied
to the criminal jurisprudence as well not only in the Indian
system but even in other parts of the world. Such offences G
indicate the similarity, common essential features between the
offences and they primarily being based on differences of
degree have been understood to be 'cognate offences'. Black's
Law Dictionary (Eighth Edition) defines the expression 'cognate
offences' as follows: H
950 SUPREME COURT REPORTS [2011] 11 S.C.R.
A "cognate offences. A lesser offence that is related to the
greater offense because it shares several of the elements
of the greater offense and is of the same class or
category. For example, shoplifting is a cognate offence of
larceny because both crimes require the element of taking
8 property with the intent to deprive the rightful owner of that
property."
26. Therefore, where the offences are cognate offences
with commonality in their feature, duly supported by evidence
on record, the Courts can always exercise its power to punish
C the accused for one or the other provided the accused does
not suffer any prejudice as afore-indicated.
27. We may now refer to certain cases where this Court
had the occasion to deal with·such issues. Certain divergent
o views were also expressed in relation to conversion of an
offence from a grave to a less grave offence. In the case of
Lakhjit Singh v. State of Punjab [1994 Suppl.(1) SCC (Crl.)
173], the accused was charged with an offence under Section
302 IPC and convicted and sentenced for the said offence, both
E by the Trial Court as well as the High Court. In appeal, a Division
Bench of this Court considered whether the offence could be
converted and the appellant could be convicted for an offence
under Section 306 IPC. Having regard to the evidence adduced
by the prosecution and the answer of the accused to the
questions put to him under Section 313 of the Cr.P.C., the Court
F was satisfied that the accused had fair notice of the allegations
to attract an offence under Section 306 IPC and as such there
was no denial of fair trial to the accused. Finally, the Court
, convicted him of an offence under Section 306 IPC. However,
a different view was expressed in a subsequent judgment by
G another Division Bench of this Court in the case of
Sanagaraboina Sreenu v. State of A.P. [(1997) 5 SCC 348 :
AIR 1957 SC 623]. In that case also the Court was dealing with
the situation where the accused was charged under Section 302
but had been convicted under Section 306 IPC. This Court felt
H
RAFIQ AHMED @ RAFI v. STATE OF U.P. 951
[SWATANTER KUMAR, J.]
that having acquitted the accused for an offence under Section A
302 which was the only charge against the accused, he could
not have been convicted for an offence punishable under
Section 306 IPC as both these offences were distinct and
different. Resultantly, the accused was acquitted. The
controversy arising from these two judgments of this Court B
came up for consideration before a three-Judge Bench of this
court in the case of Dalbir Singh v. State of U.P. [(2004) 5sec
334), wherein the accused was charged with an offence under
Sections 302, 498A and 304-B IPC, but finally was convicted
under Section 302 by the Trial Court and sentenced to death. c
On appeal, the High Court acquitted him of the charge under
Section 302 IPC opining that the evidence on record clearly
established the charge under Section 306 IPC. Keeping in view
the decision in the case of Sanagaraboina Sreenu (supra), the
High Court had concluded that the accused could not be 0
convicted under Section 306 and on this basis convicted him
under Section 498A alone. The argument raised before this
Court was that the basic ingredients were distinct and different.
The accused was not aware of the basic ingredients, the facts
sought to be established against him were not explained to him E
and he did not get a fair chance to defend himself. Resultantly,
he ought not to have been convicted for an offence under
Section 498A IPC. Rejecting all these contentions, this Court,
while convicting the accused for an offence under Section 306,
held that the law stated in Sanagaraboina Sreenu (supra) was F
riot correct enunciation of law and held as under :
"This question was again examined by a three Judge
Bench in Gurbachan Singh v. State of Punjab AIR 1957
SC 623 in which it was held as under:
G
"[l]n judging a question of prejudice, as of guilt,
Courts must act with a broad vision and look to the
substance and not to technicalities, and their main
concern should be to see whether the accused had
a fair trial, whether he knew what he was being tried H
952 SUPREME COURT REPORTS [2011] 11 S.C.R.
A for, whether the main facts sought to be established
against him were explained to him fairly and clearly
and whether he was given a full and fair chance to
defend himself."
17. There are a catena of decisions of this Court on the
B
same lines and it is not necessary to burden this judgment
by making reference to each one of them. Therefore, in
view of Section 464 Cr.P.C., it is possible for the appellate
or revisional Court to convict an accused for an offence
for which no charge was framed unless the Court is of the
c opinion that a failure of justice would in fact occasion. In
order to judge whether a failure of justice has been
occasioned, it will be relevant to examine whether the
accused was aware of the basic ingredients of the offence
for which he is being convicted and whether the main facts
D sought to be established against him were explained to
him clearly and whether he got a fair chance to defend
himself. We are, therefore, of the opinion that
Sangarabonia Sreenu (AIR 1957 SC 623) was not
correctly decided as it purports to lay down as a principle
E of law that where the accused is charged under Section
~02 IPC, he cannot be convicted for the offence under
Section 306 IPC.
xxx xxx xxx
F The next question to be seen is whether the accused was
confronted with the aforesaid features of the prosecution
case in his statement under Section 313 CrPC. His
statement runs into six pages where every aspect of the
prosecution case referred to above was put to him. He also
G gave a long written statement in accordance with Section
233(2) CrPC wherein he admitted that Vimla committed
suicide. He also admitted that the scooter and colour TV
were subsequently given to him by his in-laws but came
out with a plea that he had paid money and purchased the
H same from his in-laws. There is no aspect of the
RAFIQ AHMED @ RAFI v. STATE OF U.P. 953
[SWATANTER KUMAR, J.)
prosecution which may not have been put to him. We are, A
therefore, of the opinion that in view of the material on
record, the conviction under Section 306 IPC can safely
be recorded and the same would not result in failure of
justice in any manner. The record shows that the accused
was taken into custody on 29-3-1991 and was released B
from jail after the decision of the High Court on 20-3-1997
and thus he has undergone nearly six years of
imprisonment. In our opinion, the period already undergone
(as undertrial and after conviction) would meet the ends
of justice." c
28. We may also make a reference to another three-Judge
Bench judgment of this Court in the case of Shamnsaheb M.
Multtani vs. State of Kamataka [(2001) 2 SCC 577) which was
not noticed in the case of Dalbir Singh (supra). In that case,
the accused initially had been charged with an offence under D
Section 302 IPC but was convicted for an offence under Section
3048 IPC as according to the High Court there was no failure
of justice. This Court found error in the judgment of the High
Court convicting the accused of an offence under Section 3048
as the accused was not put at notice of the adverse E
presumption that the Court is statutorily bound to draw on
satisfaction of two ingredients of Section 304-8. Therefore, this
Court remanded the matter. It also noticed the conflict of views
expressed in the cases of Lakhjit Singh (supra) and
Sanagaraboina Sreenu (supra) and mentioned that in 'cognate F
offences', the main ingredients are common and the one
amongst them that is punishable with a lesser sentence can be
regarded as a minor offence. The Court, finding that the
ingredients of Sections 302 and 3048 are different, held as
follows: G
"15. Section 222(1) of the Code deals with a case ''when
a person is charged with an offence consisting of several
particulars". The section permits the court to convict the
accused "of the minor offence, though he was not charged
H
954 SUPREME COURT REPORTS [2011] 11 S.C . R.
A with it". Sub-section (2) deals with a similar, but slightly
different situation.
"222. (2) When a person is charged with an offence and
facts are proved which reduce it to a minor offence, he
may be convicted of the minor offence, although he is not
B
charged with it."
16. What is meant by "a minor offence" for the purpose of
Section 222 of the Code? Although the said expression
is not defined in the Code it can be discerned from the
c context that the test of minor offence is not merely that the
prescribed punishment is less than the major offence. The
two illustrations provided in the section would bring the
above point home well. Only if the two offences are
cognate offences, wherein the main ingredients are
D common, the one punishable among them with a lesser
sentence can be regarded as minor offence vis-a-vis the
other offence.
17. The composition of the offence under Section 304-8
IPC is vastly different from the formation of the offence of
E
murder under Section 302 IPC and hence the former
cannot be regarded as minor offence vis-a-vis the latter.
However, the position would be different when the charge
also contains the offence under Section 498-A IPC
(husband or relative of husband of a women subjecting her
F to cruelty). As the word "cruelty" is explained as including,
inter alia,
"harassment of the woman where such harassment
is with a view to coercing her or any person related
G to her to meet any unlawful demand for any property
or valuable security or is on account of failure by her
or any person related to her to meet such demand".
18. So when a person is charged with an offence under
Sections 302 and 498-A IPC on the allegation that he
H
RAFIQ AHMED @ RAFI v. STATE OF U.P. 955
[SWATANTER KUMAR, J.]
caused the death of a bride after subjecting her to A
harassment with a demand for dowry, within a period of 7
years of marriage, a situation may arise, as in this case,
that the offence of murder is not established as against the
accused. Nonetheless, all other ingredients necessary for
the offence under Section 304-B IPC would stand B
established. Can the accused be convicted in such a case
for the offence under Section 304-B IPC without the said
offence forming part of the charge?
xxx xxx xxx c
30. But the peculiar situation in respect of an offence
under Section 304-B IPC, as discernible from the
distinction pointed out above in respect of the offence
under Section 306 IPC is this: Under the former the court
has a statutory compulsion, merely on the establishment D
of two factual positions enumerated above, to presume
that the accused has committed dowry death. If any
accused wants to escape from the said catch the burden
is on him to disprove it. If he fails to rebut the presumption
the court is bound to act on it. E
31. Now take the case of an accused who was called upon
to defend only a charge under Section 302 IPC. The
burden of proof never shifts onto him. It ever remains on
the prosecution which has to prove the charge beyond all
reasonable doubt. The said traditional legal concept F
remains unchanged even now. In such a case. the
accused can wait till the prosecution evidence is over and
then to show that the prosecution has failed to make out
the said offence against him. No compulsory presumption
would go to the assistance of the prosecution in such a G
situation. If that be so, when an accused has no notice of
the offence under Section 304-8 IPC, as he was defending
a charge under Section 302 IPC alone, would it not lead
to a grave miscarriage of justice when he is alternatively
convicted under Section 304-8 IPC and sentenced to the H
956 SUPREME COURT REPORTS [2011) 11 S.C.R.
A serious punishment prescribed thereunder, which
mandates a minimum sentence of imprisonment for seven
years.
32. The serious consequence which may ensue to the
B
r
accused in such. situation can be limned through an
illustration: If a bride was murdered within seven years of
her marriage and there was evidence to show that either
on the previous day or a couple of days earlier she was
subjected to harassment by her husband with demand for
dowry, such husband would be guilty of the offence on the
c language of Section 304-B IPC read with Section 113-B
of the Evidence Act. But if the murder of his wife was
actually committed either by a dacoit or by a militant in a
terrorist act the husband can lead evidence to show that
he had no hand in her death at all. If he succeeds in
D discharging the burden of proof he is not liable to be
convicted under Section 304-B IPC. But if the husband is
charged only under Section 302 IPC he has no burden to
prove that his wife was murdered like that as he can have
his traditional defence that the prosecution has failed to
E prove the charge of murder against him and claim an order
of acquittal.
xxx xxx xxx
35. As the appellant was convicted by the High Court under
F Section 304-B IPC, without such an opportunity being
granted to him, we deem it necessary in the interest of
justice to afford him that opportunity. The case in the trial
court should proceed against the appellant (not against the
other two accused whose acquittal remains unchallenged
G now) from the stage of defence evidence. He is put to
notice that unless he disproves the presumption, he is
liable to be convicted under Section 304-B IPC . "
29. This concept of punishing the accused for a less grave
H offence than the one for which he was charged is not unique to
RAFIQ AHMED @ RAFI v. STATE OF U.P. 957
[SWATANTER KUMAR, J.]
the Indian Judicial System. It has its relevancy even under the A
English jurisprudence under the concept of alternative verdicts.
In R v. Coutts (Appellant), [2006 UKHL 39], the appellant was
convicted by the jury of the murder of the deceased on an
· indictment charging him with that crime alone. The deceased
· had died by accident when the appellant a·nd she had been B
engaged in consensual sexual asphyxia! activity. The House of
Lords considered whether the issue of manslaughter should
1 have been left to the jury as an alternative verdict which they
could return under Section 6(2) of the Criminal Law Act, 1967.
The Court of Appeal rejected the appellant's contention that this c
issue should have been left to the jury by the trial judge on the
ground that for the judge to introduce the possibility of a verdict
of manslaughter on these grounds would have transformed the
nature of the case that the appellant was required to meet. The
appellant argued in appeal that if the trial judge fails to leave 0
to the jury an intermediate verdict in the alternative which is
raised by credible evidence, that is an irregularity which will
render the verdict unsafe. The Crown took the stand that this
was a deliberate and sadistic killing. In resolving this issue, the
House of Lords was simultaneously faced with the broader
question concerning the duty and discretion of trial judges to E
leave alternative verdicts of lesser-included offences to the jury
where there is evidence which a rational jury could accept to
support such a verdict but neither prosecution nor defence seek
it. Lord Bingham of Cornhill spoke thus on behalf of his four
learned colleagues: F
"The public interest in the administration of justice is, in
my opinion, best served if in any trial on indictment the
trial judge leaves to the jury, subject to any appropriate
caution or warning, but irrespective of the wishes of trial G
counsel, any obvious alternative offence which there is
evidence to support. I would not extend the rule to
summary proceedings since, for all their potential
importance to individuals, they do not engage the public
interest to the same degree. I would also confine the rule H
958 SUPREME COURT REPORTS [2011] 11 S.C.R.
A to alternative verdicts obviously raised by the evidence: by
that I refer to alternatives which should suggest themselves
to the mind of any ordinarily knowledgeable and alert
criminal judge, excluding alternatives which ingenious
counsel may identify through diligent research after the
B trial. Application of this rule may in some cases benefit the
defendant, protecting him against an excessive conviction.
In other cases it may benefit the public, by providing for
the conviction of a lawbreaker who deserves punishment.
A defendant may, quite reasonably from his point of view,
c choose to roll the dice. But the interests of society should
not depend on such a contingency.
(emphasis supplied)"
30. Therefore, the Lords were of the unanimous opinion
D that the judge should have left a manslaughter verdict to the jury
and his failure to do so was a material irregularity. The Court
of Appeal, following the advice of the House of Lords, quashed
the appellant?s conviction and ordered a retrial.
E 31. As is evident from the above stated principles of law
in various judgments, there is no absolute bar or impediment,
in law, in punishing a person for an offence less grave than the
offences for which the accused was charged during the course
of the trial provided the essential ingredients for adopting such
F a course are satisfied.
32. In the present case, we are primarily concerned with
an offence punishable under Section 396 IPC and in alternative
for an offence under Section 302 of the IPC. The offence under
Section 396 consists of two parts: firstly, dacoity by five or more
G persons, and secondly, committing of a murder in addition to
the offence of dacoity. If the accused have committed both these
offences, they are liable to be punished with death or
imprisonment for life or rigorous imprisonment for a term which
may extend to ten years and be liable to pay fine as well. Under
H Section 302 IPC, whoever commits murder shall be punished
RAFIQ AHMED @ RAFI v. STATE OF U.P. 959
[SWATANTER KUMAR, J.]
with death or imprisonment for life and shall also be liable to A
pay fine. The offence of murder has been explained under
Section 300 IPC. If the act by which the death is caused is done
with the intention of causing death, it is murder. It will also be a
murder, if it falls in any of the circumstances secondly, thirdly
and fourthly of Section 300 and it is not so when it falls in the B
exception to that Section.
33. On the conjoint reading of Sections 396 and 302 IPC,
it is clear that the offence of murder has been lifted and
incorporated in the provisions of Section 396 IPC. In other C
words, the offence of murder punishable under Section 302 and
as defined under Section 300 will have to be read into the
provisions of offences stated under Section 396 IPC. In other
words, where a provision is physically lifted and made part of
another provision, it shall fall within the ambit and scope of
principle akin to 'legislation by incorporation' which normally is D
applied between an existing statute and a newly enacted law.
The expression 'murder' appearing in Section 396 would have
to take necessarily in its ambit and scope the ingredients of
Section 300 of the IPC. In our opinion, there is no scope for
any ambiguity. The provisions are clear and admit no scope E
for application of any other principle of interpretation except the
'golden rule of construction', i.e., to read the statutory language
grammatically and terminologically in the ordinary and primary
sense which it appears in its context without omission or
addition. These provisions read collectively, put the matter F
beyond ambiguity that the offence of murder, is by specific
language, included in the offences under Section 396. It will have
the same connotation, meaning and ingredients as are
contemplated under the provisions of Section 302 IPC.
G.
34. In light of the principles afore-stated, now we may revert
to the facts and circumstances of the case in hand. It is
admittedly a case of circumstantial evidence and, thus, the
evidence has to be examined in that context. There is no
dispute to the fact that the charge under Sections 396 and 201
H
960 SUPREME COURT REPORTS [2011] 11 S.C.R.
A IPC had been framed against the accused. The Trial Court had
acquitted the four accused but convicted the present appellant
for an offence under Sections 302 and 201 while convicting
another accused, namely Ahsan, for an offence punishable
under Section 411 IPC. The judgment of the trial court was
B upheld by the High Court in so far as the acquittal of the four
accused for the offences under Section 396 was concerned as
well as the conviction of the present appellant under Section
396 IPC. However, the High Court acquitted Ahsan for the
offence under Section 201 IPC which does not concern us in
c the present appeal. The charge being under Section 396 alone
whether the accused could have been convicted for an offence
under Section 302 IPC without alteration of charge is the short
question involved in the case before us. Let us examine the
evidence for conviction of the appellant on the basis. of the
circumstantial evidence. The High Court in paragraph 35 of its
0
judgment has stated the following circumstances which
undoubtedly point towards the guilt of the accused: -
"1. That the deceased (Jagdish Chandra) left his house/
shop for Nehtaur on 30.09.77 to realize the amount from
E customers.
2. That he was seen in Nehtaur Kasba by PW-2 Ved
Prakash and PW-4 Gyan Chand on that day who saw him
occupying taxi no. UPS 7293.
F 3. That the deceased was sitting in the taxi along with
others and appellant Rafiq Ahm.ad was found on the driver
seat;
4. That the taxi in question proceeded for Dhampur from
G Agency Chauraha, Nehtaur in the presence of PW-4 Gyan
Chand;
5. That the appellant (Rafiq Ahmad) was arrested by the
police on 2.10. 77 alongwith his taxi and he made a
confession to the 10 in the presence of two public
H
RAFIQ AHMED @ RAFI v. STATE OF U.P. 961
[SWATANTER KUMAR, J.]
witnesses that he had concealed the dead body in a A
sugarcane field near village kashmiri;
6. That subsequent recovery of the dad (sic) body of
deceased (Jagdish Chandra) from the sugarcane field at
the pointing out of the appellant in the night indicates that 8
Rafiq Ahmad alongwith some others looted the cash and
other valuables from the person of the deceased.
7. That Jagdish Chandra was done to death by the
appellant (Rafiq Ahmad) in the night intervening 30.9.77/
1.10. 77 and the appellant with a view to screen himself C
from legal punishment caused disappearance of the dead
body by throwing the same in the sugarcane field."
35. The above circumstances have to be examined along
with the statements of Ved Prakash (PW2) and Gyan Chand o
(PW4), the witnesses who had last seen the deceased with the
appellant. The statements of the Investigating Officer (PW11)
and the witnesses including Pyare Lal (PW3), in whose
presence the dead body was recovered at the behest of the
appellant, by means of recovery memo Ex.PW Ex-Ka 3 are the
E
other material pieces of evidence which would complete the
chain of events and point undoubtedly towards the guilt of the
accused. The accused, for the reasons best known to him, had
taken up a stand of complete denial in his statement dated 20th
February, 1981 recorded under Section 313 Cr.P.C. and opted
F
not to explain his whereabouts at the relevant time. Furthermore,
he was a regular taxi driver at the stand of Agency Chauraha.
It is true that the statement under Section 313 Cr.P.C. cannot
be the sole basis for conviction of the accused but certainly it
can be a relevant consideration for the courts to examine,
particularly when the prosecution has otherwise been able to G
establish the chain of events. It is clearly established from the
evidence on record that the deceased was a regular trader and
used to come to Nehtaur from where he was picked up by the
appellant on the fateful day. These were certain definite
circumstances clearly indicating towards the involvement of the H l
962 SUPREME COURT REPORTS [2011] 11 S.C.R.
A appellant in the commission of the crime. The prosecution has
been able to establish its case beyond reasonable doubt on
the basis of the circumstantial evidence. There is no significant
link which is missing in the case put forward by the prosecution.
36. At this stage, we may refer to a Constitution Bench
8
judgment of this Court in the case of Shyam Behari v. State of
Uttar Pradesh [AIR 1957 S.C. 320] wherein the accused after
being charged for an offence under Section 396 IPC was finally
convicted under Section 302 IPC. The Court in the said
judgment held as under:
,C
"15. It is, however, unnecessary to do so because in the
facts and circumstances of the present case the appellant
is liable to be convicted of the offence under Section 302
Indian Penal Code without anything more. The charge
D under Section 396, Indian Penal Code comprised of two
ingredients:- (1) the commission of the dacoity, and (2) the
commission of the murder in so committing the dacoity.
The first ingredient was proved without any doubt and was
not challenged by the learned counsel for the appellant.
E The second ingredient also was proved in any event as
regards the commission of the murder because the
attention of the accused was focused not only on the
commission of the offence while committing the dacoity but
also on the individual part which he took in the commission
F of that murder. So far as he was concerned, he knew from
the charge which was framed against him that he was
sought to be made responsible not only for the
commission of the dacoity but also for the commission of
the murder in committing such dacoity. The evidence which
was led on behalf of the prosecution specifically implicated .
G
him and he was named by the prosecution witnesses as
the person who shot at Mendai while crossing the ditch of
the Pipra Farm. His examination under section 342 of the
Criminal Procedure Code also brought out that point
specifically against him and he was questioned in that
H
RAFIQ AHMED @ RAFI v. STATE OF U.P. 963
[SWATANTER KUMAR, J.]
behalf. Both the Courts below recorded their concurrent A
findings of fact in regard to the part taken by the appellant
in the commission of the murder of Mendai. Under these
circumstances it could not be urged that the appellant could
not be convicted of the offence under Section 302, Indian
Penal Code if such a charge could be made out against B
him (Vide our decision in Willie (William) Slaney v. State
of Madhya Pradesh, Crl App No. 6 of 1955 D/- 31-10-
1955 ( (S) AIR 1956 SC 116) (F)"
37. The above Constitution Bench judgment of this Court,
in law, squarely applies to the present case. We ought not be C
understood to say that the facts of both the cases are identical.
In the case of Shyam Behari (supra), the accused had killed
the deceased while retreating after committing the dacoity while
in the present case the evidence, though circumstantial, is that
the appellant had killed the accused brutally and then hid his D
dead body in the fields to destroy the evidence. Thus, suffice it
to note that both the cases have some similarity in
circumstances but the principle of law stated in Shyam Behari's
case (supra) is squarely applicable to the present case.
E
38. For the reasons afore-recorded, we are of the
considered view that no prejudice has been caused to the
appellant by his conviction for an offence under Section 302
IPC though he was initially charged with an offence punishable
under Section 396 IPC read with Section 201 IPC. Further, the F
nature of injuries namely three incised wounds, three abrasions
and severing of the trachea, caused by a sharp-edged weapon
as noticed by the High Court in para 34 of its judgment, indicate
that the accused knew that the injury inflicted would be sufficient
in the ordinary course of nature to cause death. The 'prejudice' G
has to be examined with reference to the rights and/or
protections available to the accused. The incriminating
evidence had been clearly put to the accused in his statement
under Section 313 Cr.P.C. The circumstances which constitute
an offence under Section 302 were literally put to him, as
H
964 SUPREME COURT REPORTS [2011] 11 S.C.R.
A Section 302 IPC itself is an integral part of an offence
punishable under Section 396 IPC. The learned counsel
appearing for the appellant has not been able to demonstrate
any_ prejudice which the appellant has suffered in his right to
defence, fair trial and in relation to the case of the prosecution.
B Once the appellant has not suffered any prejudice, much less
a serious prejudice, then the conviction of the appellant under
Section 302 IPC cannot be set aside merely for want of framing
of a specific/alternate charge for an offence punishable under
Section 302 IPC. It is more so because the dimensions and
C facets of an offence under Section 302 are incorporated by
specific language and are inbuilt in the offence punishable under
Section 396 IPC. Thus, on the application of principle of
'cognate offences', there is no prejudice caused to the rights
of the appellant.
D 39. For the reasons afore-stated, we find no merit in this
appeal and the same is dismissed.
D.G.· Appeal dismissed.
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